- The Washington Times - Wednesday, December 5, 2012

The legal battle over graphic labels on cigarette packages edged closer to the U.S. Supreme Court on Wednesday, as a federal appellate court declined to reconsider its decision that found the labels unconstitutional.

Since its decision is in conflict with one rendered in March by another federal appellate court, it raises the possibility that the high court may accept review of the cases.

The U.S. Court of Appeals in the District of Columbia on Wednesday denied, without explanation, a request by the Food and Drug Administration (FDA) to reconsider an August opinion by a three-judge panel that struck down the graphic cigarette warnings.

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This means the government has 90 days to appeal the decision to the U.S. Supreme Court.

The Justice Department and the FDA declined to comment, as did a spokesman for R.J. Reynolds Tobacco Co., one of the plaintiffs.

Matthew L. Myers, president of the Campaign for Tobacco-Free Kids, said the federal government should appeal the ruling to the Supreme Court.

The D.C. federal appellate court’s decision “was wrong on the science and wrong on the law,” said Mr. Myers, noting that “strong scientific evidence from around the world” indicates that graphic warnings on cigarette packages and advertising inform consumers about health risks of smoking, discourage children from smoking and motivate smokers to quit.

Moreover, the U.S. Court of Appeals for the Sixth Circuit “upheld the graphic warning-labels requirement enacted by Congress in 2009,” Mr. Myers said. “The split legal decisions compel the Supreme Court to settle the issue.”

Cigarette packages have carried government warning labels since 1965. The 2009 Family Smoking Prevention and Tobacco Control Act empowered the FDA to update the labels.

After months of development, the FDA revealed its plan to require cigarette makers to use, in rotation, one of nine graphic health warnings on the entire top halves of their cigarette packages and 20 percent of their advertising spaces.

The images included diseased lungs, a human cadaver and an infant inhaling cigarette smoke, and words like “Smoking can kill you.” A hotline, 1-800-QUIT-NOW, was also supposed to have been added to packages and advertisements by this September.

In the District, a federal judge and federal appellate court both ruled that the FDA labeling scheme was unconstitutional as it compelled specific kinds of commercial speech. This meant the courts agreed with the tobacco companies, which argued that they were being forced to be an “unwilling mouthpiece” for the federal government’s antismoking messages.

Lawyers for the FDA and the Department of Health and Human Services countered that its nine warnings and images were based on science, and offered essential and legitimate public-health messages.

In a separate case, the FDA’s arguments received a more favorable response from a federal judge in Kentucky and a three-judge appellate panel in Cincinnati.

Large, graphic cigarette-warning labels “are reasonably related to the government’s interest in preventing consumer deception and are therefore constitutional,” the 6th Circuit Court of Appeals ruled in March.

The tobacco companies noted that the Cincinnati court’s ruling did not address the legality of the nine FDA images and warnings, but in October, the companies petitioned the Supreme Court to review that case.

The tobacco companies in the D.C. case include R.J. Reynolds Tobacco Co.; Lorillard Tobacco Co.; Commonwealth Brands Inc.; Liggett Group LLC; and Santa Fe Natural Tobacco Company Inc.

The companies involved in the Kentucky case are Discount Tobacco City & Lottery Inc.; Lorillard Tobacco Co., National Tobacco Co., Commonwealth Brands Inc., and American Snuff Co.

About 45 million U.S. adults were current smokers in 2010, said the Centers for Disease Control and Prevention.

This story is based on part on wire service reports.

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