NM Company Challenge FDA in Court on Tobacco Issue

The Santa Fe Natural Tobacco Co. of Santa Fe, N.M. has joined a lawsuit to prevent the FDA enforcing new rules about cigarette package labeling. The new provisions, already enacted but not yet in effect, would force them to put graphic images of the damage smoking causes, right on the pack itself. In fact, the pictures would have to be half of the viewable space – one both sides of a cigarette package. Overall, manufacturers would have to spend 20% of their advertising budgets on similar anti-smoking material.

At issue in the court is whether these new rules go too far and violate constitutional rights to free expression. From the tobacco company side (there are five in the lawsuit), the pictures do more than just warn about smoking. They act as an immediate, emotion cue that will harm sales of the products.

Of course, from the anti-smoking side of the issue, this is precisely what is desired. It’s actually a bit ironic that the very mechanism used to increase smoking – clever advertising – should then be used against them. Still, manufacturers are already required to place text warnings on the packages and, as a group, they fund anti-smoking campaigns.

The question is not about the FDA requiring warnings, but whether pictures of damaged teeth or cancerous lesions actually warn or just cause disgust. So far, it looks like the Judge who will decide is leaning toward the manufacturers’ side of the issue. US District Judge Richard Leon already ruled that some pictures go beyond communicating the dangers of smoking and drift into propaganda.

The question remains whether changing the photos to something less dramatic will be allowed, or if the FDA cannot force on-pack advertising at all. The current set of pictures is provided by the FDA as part of their intended rules and would have to be rotated on a regular basis so that all images would appear at one time or another. This is similar to how they currently use the text warnings, which cycle through an approved set.