McGraw joins brief in support of graphic labels on cigarettes

By John O'Brien | Dec 28, 2011


WASHINGTON (Legal Newsline) - A group of state attorneys general led by Idaho's Lawrence Wasden has filed a brief in support of the Food and Drug Administration's new graphic warning labels for cigarettes.

Wasden filed an amicus brief on behalf of 22 states, the District of Columbia and the Virgin Islands on Friday in the FDA's appeal of an injunction that has been placed on implementation of the new warning labels. It says seeing the warning labels are in the states' best interest because they bear a large portion of the public health burden of tobacco use.

West Virginia Attorney General Darrell McGraw is among those who joined the brief.

"The First Amendment does not prevent the government from requiring that lethal and addictive products carry warning labels that effectively inform consumers of the risks that those products entail," the brief says.

"This case involves the deadliest product sold in America, and one of the most addictive. Over forty years' experience with small, obscurely placed text-only warning labels on cigarette packs has demonstrated that they simply do not work. Studies confirm that they are no longer even noticed."

U.S. District Judge Richard Leon, of the District of Columbia, granted the injunction on Nov. 7, and the FDA appealed.

R.J. Reynolds, Commonwealth Brands, Liggett Group and Santa Fe Natural Tobacco all challenged the FDA's new warning label requirements on First Amendment grounds.

They contend the labels -- which displayed certain graphic images, such as diseased lungs and a cadaver bearing chest staples on an autopsy table -- are an unconstitutional means of forcing them to distribute the government's anti-smoking message.

The companies would have been forced to display the new labels by Sept. 22.

However, Leon, in granting the companies' request for a preliminary injunction, stayed the effective date until 15 months after the final resolution of the litigation.

"This case poses a constitutional challenge to a bold new tact by the Congress, and the FDA, in their obvious and continuing efforts to minimize, if not eradicate, tobacco use in the United States," Leon wrote in his 29-page memorandum opinion.

"Notwithstanding the potential legal and financial ramifications of this challenge, the government, for reasons known only to itself, is unwilling to voluntarily stay the effective date of this rule until the judicial branch can appropriately review the constitutionality of the government's novel -- and costly -- approach to regulating tobacco packaging and advertising.

"Thus, this court must -- and will -- act to preserve the status quo until it can evaluate, on the merits (and without incurring irreparable harm to those companies genuinely affected), the constitutionality of the commercial speech that these graphic images compel."

In 1998, 46 states reached a settlement with the tobacco industry that requires companies to make an annual payment to the states to offset health care costs caused by smoking. The settlement has an estimated worth of $246 billion over its first 25 years.

Four other states reached their own agreements with the tobacco industry.

Wasden's brief says Leon failed to recognize the public health threat posed by cigarette smoking and a "long history of deception" by the industry.

"The appropriateness of a product warning depends upon the dangers posed by the product, the likelihood that its users will suffer harm, the likelihood that the warning will be noticed, and the capacity of those dependent on the warning to understand its import and act in response to it," the brief says.

"The urgency of a warning for a product that could cause the death of children may differ markedly from that of a warning for a product that could cause an upset stomach."

The other states that joined the brief are Alaska, Arizona, Arkansas, California, Connecticut, Hawaii, Illinois, Iowa, Maine, Maryland, Mississippi, Montana, New Hampshire, New Mexico, Ohio, Rhode Island, South Dakota, Utah, Vermont, Washington.

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