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Ruling Against New Cigarette Warnings Is Wrong on the Law and the Science; Justice Department Should Appeal to Protect Public Health

Statement of Matthew L. Myers, President, Campaign for Tobacco-Free Kids
November 07, 2011

WASHINGTON, DC (November 7, 2011) — A federal judge's ruling blocking implementation of new, graphic cigarette warning labels is wrong on the science and wrong on the law. The Justice Department should appeal the decision by U.S. District Court Judge Richard Leon to protect public health and preserve a critical requirement of the landmark 2009 law giving the Food and Drug Administration the authority to regulate tobacco products. If allowed to stand, this ruling would make it impossible to implement any effective warning labels.

Judge Leon's ruling ignores the overwhelming scientific evidence about the need for the new cigarette warnings and their effectiveness. It also ignores decades of First Amendment precedent that support the right of the government to require strong warning labels to protect the public health. Given the overwhelming evidence of the need for these warnings and the tobacco industry's own admission of the factual accuracy of the warning statements, we are confident that this decision will not be the last word on the new warnings. It is but one decision in a long legal battle that could end up before the U.S. Supreme Court, and another federal judge has already upheld the law's requirement for large, graphic cigarette warnings.

Studies around the world and evidence presented to the FDA have repeatedly shown that large, graphic warnings, like those adopted by the FDA, are most effective at informing consumers about the health risks of smoking, discouraging children and other nonsmokers from starting to smoke, and motivating smokers to quit. Because of that evidence, at least 43 other countries now require large, graphic cigarette warnings.

Legally, the ruling ignores the extensive record established by Congress showing that the warnings are consistent with the First Amendment — a record that led another federal judge to uphold the warnings requirement. In January 2010, U.S. District Court Judge Joseph H. McKinley in Bowling Green, Kentucky, relied on a wealth of scientific studies and legal precedent. Noting that the labels accurately convey the health risks of smoking, Judge McKinley said: 'The government's message is objective and has not been controversial for decades.' He ruled that the new warning labels are legal because they are 'sufficiently tailored' to meet the government's substantial interest in effectively alerting the public to the dangers of smoking.

The graphic warnings were mandated by a large, bipartisan majority of Congress. Lawmakers relied on an extensive record showing that the current, text-only warnings — which are printed on the side of cigarette packs and haven't been updated since 1984 — are unnoticed and stale.

It is obvious why tobacco companies filed this suit. They continue to spend billions of dollars to play down the health risks of smoking and glamorize tobacco use. These new warnings will tell the truth about how deadly and unglamorous cigarette smoking truly is. Research has found that pack-a-day smokers could be exposed to cigarette health warnings more than 7,000 times per year. The new warnings provide a powerful incentive for smokers to take the life-saving step of quitting and for kids never to try that first cigarette.

The law requires that all cigarette packs carry the new warnings starting in September 2012. The warnings must cover the top half of the front and back of cigarette packs and 20 percent of cigarette advertisements, and they must contain color graphics depicting the negative health consequences of smoking. The FDA has authority to periodically revise the warnings to keep them fresh and effective based on the latest science. They serve the compelling goal of reducing the death and disease caused by tobacco use, which kills more than 400,000 Americans and costs the nation $96 billion in health care expenditures each year.

The Justice Department must now immediately appeal Judge Leon's ruling, so that implementation of the warning label requirement can go forward without delay — a delay that will only serve the interests of the tobacco industry selling more of its addictive and deadly products.

Congress approved the 2009 law with broad, bipartisan support. Its sponsors included U.S. Reps. Henry Waxman (D-CA) and Todd Platts (R-PA), former U.S. Sen. Christopher Dodd (D-CT) and the late U.S. Senator Edward Kennedy (D-MA). U.S. Sen. Mike Enzi (R-WY) championed the requirement for large, graphic cigarette warnings.