- The Washington Times - Wednesday, September 21, 2011

Can Uncle Sam legally force tobacco companies to put images of corpses, diseased body parts and tracheotomy patients on their cigarette packages?

Attorneys for five tobacco companies told a federal judge Wednesday that such radical “rebranding” was unconstitutional and costly, and would cause them irreparable injury.

Government cannot make businesses act as an “unwilling mouthpiece” for its advocacy campaigns, said R. J. Reynolds Tobacco Co. attorney Noel J. Francisco. He asked U.S. District Judge Richard Leon in the District of Columbia to issue a preliminary injunction to block the Food and Drug Administration (FDA) cigarette-packaging rules from going into effect until 15 months after a final judgment on the issue.

But lawyers for the FDA countered that their new packaging rules were fully legal, and fulfilled a congressional mandate to step up efforts to deter smoking in youth and encourage smokers to quit.

“This is a health warning” and “warnings are permissible” under the law, said Department of Justice lawyer Mark B. Stern.

The FDA warnings — which pair dramatic images, such as a male corpse with a stitched-up chest and a man smoking through a hole in his throat, with texts such as “Warning: Smoking can kill you.” and “Warning: Cigarettes are addictive.” — will make important new statements to Americans, said Mr. Stern. “It’s the image that gets the attention.”

The court should not delay implementation of the cigarette-packaging changes because that would be detrimental to public health, added Mr. Stern. Tobacco is “not an ordinary product,” he said. More than 440,000 persons die of smoking-related illnesses each year and 4,000 children start experimenting with smoking every day.

Judge Leon, an appointee of President George W. Bush, said he would try to issue his ruling no later than November.

Tobacco companies are required to begin using the FDA’s nine images and warnings on the top halves of all cigarette packages, and in all cigarette advertising, by September 2012.

In the three-hour hearing, Judge Leon posed questions about cigarette-packaging experiences in other countries, whether explicit warnings actually affect behavior, and whether Congress considered the tobacco companies’ First Amendment rights to free speech when it passed its 2009 Family Smoking Prevention and Tobacco Control Act, the legislation that prompted the FDA labeling rules.

Where do “factual, noncontroversial” warnings cross the line into “advocacy,” Judge Leon asked several times.

Mr. Francisco argued that the image of a male corpse with stitches in the chest is not an accurate portrayal of the effects of smoking, because medical examiners don’t typically do autopsies if someone dies of lung cancer. He also objected to the image of a tracheotomy patient, saying, “That is simply not true in the vast majority of cases.”

Mr. Stern argued that all the FDA images show the effects of cigarettes, and that just because an image is disturbing doesn’t mean it is inaccurate. The nine images, which include a set of diseased lungs and a mouth with discolored teeth and an ulcerated lip, are necessary because they illuminate several warnings, he added. The goal is to get people “to notice the message.”

The five companies — R.J. Reynolds Tobacco Co., Lorillard Tobacco Co., Commonwealth Brands Inc., Liggett Group LLC and Santa Fe Natural Tobacco Co. — are also seeking summary judgment against the new rules. That will be handled in a later hearing, Judge Leon said.

A similar cigarette-packaging case is now before the U.S. Court of Appeals for the 6th Circuit.

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