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Panel’s ruling a boost to anti-smoking warnings

- The Washington Times - Monday, March 19, 2012

The federal government can require tobacco companies to "reserve significant packaging space" for anti-smoking warnings and graphic images on their cigarette labels, a three-judge appellate panel ruled Monday.

"We return to where we began — the lack of consumer awareness of tobacco's serious health risks resulting from the decades-long deception by tobacco companies," Judge Jane Branstetter Stranch of the 6th U.S. Circuit Court of Appeals in Cincinnati wrote in a ruling that was unanimous in some sections and 2-1 in others.

Current tobacco-label warnings do not effectively inform consumers on these health risks, even though they include "the undisputed fact that plaintiffs' products literally kill users and, often, members of the families of users," she wrote.

Consequently, "we hold that the act's warnings are reasonably related to the government's interest in preventing consumer deception and are therefore constitutional."

The act refers to the 2009 Family Smoking Prevention and Tobacco Control Act, which authorized the Food and Drug Administration to create anti-smoking messages and graphic warnings that must prominently appear on cigarette packages and in tobacco advertising. FDA-approved images include a human cadaver, diseased lungs and a man with smoke coming out of a hole in his neck, as well as warnings that say "Cigarettes cause fatal lung disease" and "Tobacco smoke can harm your children.

The circuit court's ruling is opposite that of U.S. District Court Judge Richard J. Leon, who, in a related case, said in February the FDA labeling rules were unconstitutional because they "compelled" certain speech. Judge Leon's ruling is being appealed, with oral arguments scheduled in April.

David Howard, spokesman for R.J. Reynolds Tobacco Company, one of the plaintiffs in both lawsuits, said, "It's important to note that the court, in a split decision, only held that graphic warnings could legally be displayed on cigarette packaging and advertisements.

"This court did not address the constitutionality of the nine graphic images the FDA seeks to impose. Those nine warnings have been found unconstitutional" by Judge Leon, he said, adding, "We continue to review the ruling and are considering next steps."

The FDA does not comment on proposed, pending or ongoing litigation, a spokeswoman said.

Susan M. Liss, executive director of the Campaign for Tobacco-Free Kids, said Monday's ruling is "a powerful refutation" of Judge Leon's reasoning. She applauded the circuit court's agreement that tobacco-marketing tactics, such as sponsorships, tobacco-branded merchandise and free samples of tobacco products, should be restricted.

Dr. Robert W. Block, president of the American Academy of Pediatrics, also praised the ruling. "For the 3,000 children under the age of 18 who start to smoke each day, this ruling could not come soon enough," he said.

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