Tuesday, April 3, 2012

Circuit Split Watch: Graphic Tobacco Warnings

This article first appeared in the April 2, 2012, issue of the National Law Journal’s Supreme Court Insider.

The Family Smoking Prevention and Tobacco Control Act requires that color images, along with written warnings, cover the top half of all cigarette packs, front and back, and 20 percent of advertising. Among the images are diseased lungs, a cadaver with a stapled chest, and a smoker breathing through a hole in his throat.

Tobacco companies have challenged these graphic warnings in federal court, yielding, in recent weeks, split results that could lead to U.S. Supreme Court review.

Although the images are grim, the reality is grim, too, supporters argue.

The Act reports that use of tobacco “is the foremost preventable cause of premature death in America. It causes over 400,000 deaths in the United States each year, and approximately 8,600,000 Americans have chronic illnesses related to smoking.”

In a video posted on YouTube, “New Cigarette Health Warnings: Protecting Public Health,” Health and Human Services Secretary Kathleen Sebelius declares that the graphic images “tell the truth” about the negative health effects of smoking more effectively than words alone. Put another way, a picture is worth a thousand words.

But, do these graphic pictures go too far? Judge Richard Leon of the U.S. District Court for the District of Columbia thinks so. Granting summary judgment to the tobacco companies on February 29 in R.J. Reynolds Tobacco Co. v. FDA, Judge Leon said that the images violate the companies’ First Amendment rights by forcing them to be “the Government’s mouthpiece.” To salvage the warnings, which it views as constitutional, the FDA appealed. Oral argument is set for April 10 at the U.S. Court of Appeals for the D.C. Circuit.

On March 19, the U.S. Court of Appeals for the Sixth Circuit came to a different conclusion, by a 2-1 vote in Discount Tobacco City & Lottery, Inc. v. United States. Judge Jane Stranch, writing for herself and Judge Michael Barrett of the Southern District of Ohio, sitting by designation, upheld the graphic warnings. Judge Eric Clay dissented.

The format of the Sixth Circuit decision is unusual in that there are two majority opinions, each covering various issues. The Stranch opinion contains the majority ruling on the graphic warnings. The majority looked to the words of the Act requiring color images, analyzing the case as a facial challenge, while the dissent also took the actual images, which were chosen later, into account.

Judge Stranch noted that the current textual warnings are not effectively reaching many people, such as the key youth population.

“A warning that is not noticed, read, or understood by consumers does not serve its function. The new warnings rationally address these problems by being larger and including graphics,” Stranch explained.

Judge Clay disagreed, referencing the D.C. district court decision. Clay found that the government had not demonstrated that the graphic warnings are “reasonably tailored.” Instead, they play on fear and “attempt to flagrantly manipulate the emotions of consumers.”

Responding to an email inquiry about whether the tobacco companies intend to seek rehearing en banc from the Sixth Circuit or appeal directly to the U.S. Supreme Court, one of the companies’ attorneys, Floyd Abrams of Cahill Gordon & Reindel in New York City, stated that all options are under consideration.

Even if the case is reheard en banc at the circuit level, the Supreme Court is almost certain to have the final say. Because a federal statute with nationwide economic and health implications is at stake, it is likely that the issue would garner the Court’s attention.

The graphic warnings were to have taken effect in September 2012, but that date is now uncertain due to the ongoing litigation, according to an FDA statement on its website.