United States: The U.S. Supreme Court on Monday left untouched the question of whether it is constitutional to put on the packets of cigarettes the vivid graphic warnings about the dangers of smoking as required by federal law, asking the tobacco company litigants if they consider it lawful to sanction free speech infringement by denying the makers of cigarettes the right to make use of their packages to spread their messages about the benefits of smoking cigarettes to their business.
The justices dismissed an appeal by RJ Reynolds and other tobacco companies of a lower court’s ruling that determined that a set of health warnings provided by the U.S. Food and Drug Administration did not infringe on the constitutional rights of the companies as protected by the Constitution’s First Amendment. This action by the justices means that, in effect, we have the ruling of the lower court.
FDA’s Graphic Warning Rule Faces Industry Pushback
The rule was adopted by the agency in 2020 during Donald Trump’s first presidential administration. The FDA demanded that the potential risks of smoking be positioned on 50% of the front, top, and head-of-the-hair side of the cigarette packs and in 20% of the ad space. The regulation is technically on the books, but the FDA has only rarely, has generally suspended, and enforced it in the face of litigation.
The 11 warnings are illustrated with cartoons depicting, for example, feet with bleeding toes removed, a stunted baby due to lack of growth during the fetal stage, and a woman with a huge growth on her neck being a sign of neck cancer, plus written descriptions of various health risks.
Public Health vs. Corporate Rights
ITG Brands, a subsidiary of Imperial Brands (IMB.L, RJ Reynolds, a subsidiary of British American Tobacco (BATS.L, and Liggett, a subsidiary of Vector Group, led other tobacco companies to file the federal lawsuit in 2020 in a bid to stop the implementation of the warning labels.
These companies said, among other things, that the health warnings infringed on their freedom of speech in that the companies were forced to promote the anti-smoking message of the US government through images that the companies claimed were misleading or were an overstatement of the dangers of smoking.
Tobacco usage has substantially dropped over the last six and a half decades, starting with 42.6 percent of adults in America in 1965 to 11.6 percent in 2022, according to the American Lung Association. Smoking, however, is still said to lead to more than four hundred and eighty-five thousand deaths in the United States every year by the U.S. Centers for Disease Control and Prevention.
The FDA explained that these warning labels were reasonable in reference to the public interest of the U.S. government, among others, minimizing confusion and deception regarding the health effects of smoking. The agency said this was the reason for the illustrated warnings, as the text ones proved ineffective in preventing teenagers from taking up and continuing to smoke.
Mixed Legal Rulings on First Amendment Claims
In 2022, United States District Judge J. Campbell Barker in Tyler, Texas, stopped the regulation because she thought that the graphic warnings were a violation of the First Amendment right.
However, in March, the New Orleans-based 5th U.S. Circuit Court of Appeals’ claim that the controversy falls under factual and non-controversial warnings has passed the legal provision of the First Amendment. This made the tobacco companies appeal to the Supreme Court.
Next Steps for Tobacco Regulation
RJ Reynolds did not respond on Monday to the court’s ruling to turn down its appeal.
In a similar case on the FDA, the Supreme Court on Dec. 2 will be conducting hearings on the agency’s rejection of applications for flavored cigarettes and cigars.