“Warning: Smoking Can Kill You”

August 28, 2012

An editorial in The New York Times harshly criticized the court ruling last week that struck down the graphic cigarette warnings required by Congress under a 2009 law.

In a 2 to 1 ruling, a panel of the U.S. Court of Appeals for the D.C. Circuit on Friday found that the new warnings violated the First Amendment rights of tobacco companies. The majority opinion ignored the significant scientific evidence demonstrating that graphic warnings are most effective at communicating the health risks of smoking, discouraging children and other nonsmoker from starting to smoke and motivating smokers to quit.

As the Times editorialized, the majority opinion:

Ignores that [tobacco] companies have spent billions of dollars over many decades misleading consumers about smoking's terrible consequences, and that the warnings require companies to disclose accurate information. As Judge Judith Rogers noted in dissent, there is good evidence that bolder warnings will 'alleviate' some of the harm.

”The government has an interest of paramount importance in effectively conveying information about the health risks of smoking to adolescent would-be smokers and other consumer,” she said, and “nothing in the Supreme Court’s commercial speech precedent would restrict the government” from doing that with warnings.

The D.C. Circuit’s ruling is at odds with a March 2012 ruling by the U.S. Court of Appeals for the Sixth Circuit, which upheld the graphic warnings requirement. We agree with the Times that government should appeal Friday’s ruling either to the full D.C. Circuit or the Supreme Court.

The D.C. Circuit's ruling was especially off the mark in arguing that the government provided no evidence that graphic warnings are effective. To the contrary, the Food and Drug Administration established a significant record demonstrating both that the current, small warnings are stale and ineffective and that graphic warnings are most effective at communicating the health risks of smoking.

The FDA provided extensive research on the effectiveness of graphic warnings in its final rule for the new warnings, published in June 2011. Graphic health warnings, FDA wrote, are:

(1) more likely to be noticed than text-only warnings, (2) more effective for educating smokers about the health risks of smoking and for increasing the time smokers spend thinking about the health risks, and (3) associated with increased motivation to quit smoking… Evidence from countries with graphic health warnings also indicates that such warnings are an important information source for younger smokers, and that pictures are effective in conveying messages to children... These important effects of graphic warnings are sustained longer than any impact from text-only warnings.

Read our statement on last Friday's ruling.