RICHMOND, Va. (AP) — An appeals court on Wednesday denied the federal government's request to reconsider a decision blocking a requirement that tobacco companies put large graphic health warnings on cigarette packages to show that smoking can disfigure and even kill people.
In its filings, the U.S. Court of Appeals in Washington, D.C., did not provide any reason denying the request for the full court or a panel to rehear the case.
In August, a three-judge panel affirmed a lower court ruling blocking the Food and Drug Administration mandate, saying it ran afoul of the First Amendment's free speech protections.
A Justice Department spokesman declined to comment. The government has 90 days to appeal the decision to the U.S. Supreme Court.
Some of the nation's largest tobacco companies, including R.J. Reynolds Tobacco Co., sued to block the mandate to include warnings to show the dangers of smoking and encouraging smokers to quit lighting up. They argued that the proposed warnings went beyond factual information into anti-smoking advocacy. The government argued the photos of dead and diseased smokers are factual.
The nine graphic warnings proposed by the FDA include color images of a man exhaling cigarette smoke through a tracheotomy hole in his throat, and a plume of cigarette smoke enveloping an infant receiving a mother's kiss. These are accompanied by language that says smoking causes cancer and can harm fetuses. The warnings were to cover the entire top half of cigarette packs, front and back, and include the phone number for a stop-smoking hotline, 1-800-QUIT-NOW.
Tobacco companies increasingly rely on their packaging to build brand loyalty and grab consumers — one of the few advertising levers left to them after the government curbed their presence in magazines, billboards and TV.
The appeals court panel in August wrote that the case raises the question of whether the government can force the manufacturer of a product to go beyond making purely factual and accurate disclosures and undermine its own economic interest — in this case, by making "'every single pack of cigarettes in the country (a) mini billboard' for the government's anti-smoking message." It wrote that the FDA "has not provided a shred of evidence" showing that the warnings will "directly advance" its interest in reducing the number of Americans who smoke.
But the government argued in its appeal for rehearing that the text of the new warnings are "indisputably accurate" and the format, including the use of graphics, is tailored to the demand of a "market in which the vast majority of users become addicted to a lethal product before age 18." It also argued that the First Amendment does not require the government to show how one part of a multi-faceted anti-smoking public health campaign directly reduces smoking rates.