6th Circuit Approves Cigarette Warning Labels and Suppression of Risk Information but Rejects Ad Limits

Today a federal appeals court upheld the new cigarette warning labels that a federal judge in another circuit deemed unconstitutional last month. The U.S. Court of Appeals for the 6th Circuit said the warnings, which feature icky color pictures and would cover half of each pack's front and back panels, were justifiable as a way of preventing consumers from being misled by tobacco promotion. Judge Eric Clay, who wrote the rest of the ruling, dissented on that point. "Although the government has demonstrated that an information deficit still exists among potential tobacco consumers, which may render warning-less tobacco products inherently deceptive," he wrote, "it has not adequately shown that the inclusion of color graphic warning labels is a properly or reasonably tailored response to address that harm."

The 6th Circuit also upheld the restrictions on information about the relative risks of tobacco products that were included in the Family Smoking Prevention and Tobacco Control Act, the same law that mandated the new warning labels. "Contrary to Plaintiffs' assertions," the court said, "the interest that the government seeks to advance through the MRTPR [modified risk tobacco product rule] is not the risk that the public will become overly informed regarding the relative risks of various tobacco products, but instead the risk that the tobacco industry will make fraudulent claims regarding the relative health benefits of the products that it markets." That gloss is misleading, since the law authorizes the Food and Drug Administration (FDA) to suppress even truthful information about a "modified risk" product (such as smokeless tobacco and electronic cigarettes) if it decides such censorship is necessary to protect public health.

Under the law, the FDA is supposed to approve the marketing of a modified-risk product only if it concludes that doing so will "benefit the health of the population as a whole taking into account both users of tobacco products and persons who do not currently use tobacco products." For example, the FDA can forbid risk comparisons between cigarettes and smokeless tobacco if it worries, no matter how improbably, that the health benefits enjoyed by smokers who switch to snus (Swedish-style oral snuff) would be outweighed by the health costs to nonsmokers who are attracted to snus by the knowledge that it is much less dangerous than cigarettes. These regulations are not just about preventing fraud; they are also about serving the FDA's conception of public health, which may mean overriding the interests of individual consumers.

By contrast, the 6th Circuit overturned the tobacco control act's ban on the use of color or pictures in outdoor ads, indoor ads (except those in adult-only businesses), and print ads carried by publications with significant underage readerships. "Although the government can show a substantial interest in alleviating the effects of tobacco advertising on juvenile consumers," the court said, "the provision of the Act banning the useof color and graphics in tobacco advertising is vastly overbroad."

The 6th Circuit's decision is here (PDF). I discussed U.S. District Judge Richard Leon's injunction against the new warning labels earlier this month. After Congress approved the tobacco ad restrictions in 2009, I predicted they would be overturned on First Amendment grounds. 

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Paul||

    In any other area if a company were knowingly conveying false or deceptive information to its consumers the FTC would get involved and shut them down.

    But the government doesn't want that. No, the government wants this product... a product which is approved by the FDA, no less to continue on.

    Because it's not about safety or saving lives. No, it's something deeper, captain. Revenue, perhaps?

  • Jeffersonian||

    As bottomlessly cynical as this is, it's not nearly cynical enough.

  • WI||

    So true. Smokers are the greatest form of no risk revenue to the government. Smokers pay for the CHIP program and are the only group that takes a 25-30% tax increase and says 'I hate you government, now pass me a smoke.' The fact that they are social pariahs ony makes the government more bold in their regressive tax strategy.

  • WI||

    And what about this question, if drugs (in this case marijuana specifically) were to become legal and the state taxed it by the gram would that not be a regressive tax that the poor paid a greater percentage of their income to obtain than the rich?

  • WI||

    I only make the point because it is relevant to the smokers dilemma. People who smoke pay a disproportionate amount in taxes than say morbidly obese people. So it stands to reason that if smokers must pay what they do to the government (setate and federal) then morbidly obese people should pay more for food deemed unhealthy by the state. Of course, if you are a libertarian ...

  • Michelle Obama||

    People who smoke pay a disproportionate amount in taxes than say morbidly obese people.

    Once my hubby wins a second term we'll start addressing this discrepancy.

  • WI||

    I wonder though ... if there was something that a larger proportion of the general population enjoyed that the government taxed as regressively as tobacco, would people still be as apathetic towards their burden as smokers?

  • Colonel_Angus||

    I propose extreme excise taxes on alcohol, carbonated beverages, loosely defined "sugar products" and "sodium products", and caffeine for starters. The probable backlash would be worth my own temporary hardship.

  • WI||

    "temporary hardship"

    I agree, but you only name the "easy" things to tax. If the reds or blues really want to increase revenue from sin taxes imagine the possibilities.
    Driving fatalities
    Gun Ownership
    etc.

  • WI||

    Sex (std's increase the cost of healthcare)
    SWE (sedentary workplace environment)
    ESE (extreme sports have large proportion of the sports injuries if you don't include ...
    Football

  • WI||

    Playing Football Tax > Tebow

  • Colonel_Angus||

    Temporary hardship because such taxes would hopefully get their asses thrown out and maybe even exiled or tar and feathered. I would bring a keg to that party.

  • WI||

    I would enjoy that keg (even if it was american beer). But, isn't that how far it woulld go to insure safety.

  • Zeb||

    the government has demonstrated that an information deficit still exists among potential tobacco consumers

    Really? Who doesn't know that tobacco is adictive and really bad for you?

  • Kwanzaa Cake||

    I used to believe tobacco was addictive, since that is what the government drilled into my brain.But I now know way too many former smokers to believe it is anything other than merely hard to quit, no different than any number of bad habits that provide some measure of pleasure.

  • The Christmas Atheist||

    But I now know way too many former smokers to believe it is anything other than merely hard to quit

    Hey, I quit 28 years ago, and I have the willpower of ... Hey! Are those doughnuts?

  • Binky||

    information deficit

    Nice. As opposed to "ignorance excess", I suppose.

  • Queer||

    Well, the government wants to get rid of us, so ,lets argue a HUGE Tax on smokes. . .

  • EDG reppin' LBC||

    Thanks to Reason for running this article. I ran out of cigarettes last night, and need to go buy some more. Thanks for the reminder!

  • Hugh Akston||

    Tax forms should be printed with full-color photos of flying killer robots blowing up Afghani weddings and Warren Buffett's social security checks.

  • ||

    tax forms should be printed on the sole of a jackboot that stomps you in the face forever.

  • Paul||

    The government hasn't demonstrated an information deficit exists among government consumers.

  • Robert||

    Flying killer robots blow up Warren Buffet's SS checks? Good job, tough target.

  • Apatheist ಠ_ರೃ||

    Damn, I missed all those exceptions in the 1st Amendment, how could I be so blind?

  • ||

    You are naive. The U.S.A. is not a country of laws. It is a country where judges do as they please and claim that the Constitution made them do it.

  • ||

    I think some parodies of these warning labels might be needed.
    http://www.flickr.com/photos/p.....hotostream
    http://www.allrightmagazine.co.....bel-10399/

  • ||

    That "smoking hole" ad is such an obvious Photoshop job that the impact is lost. It makes the possibility of a tracheotomy seem cartoonish, and so remote they couldn't even find an actual instance to photograph.

  • ||

    Not to mention, the TV ads attribute every affliction known to man to cigarette smoking.

  • Colonel_Angus||

    The perspective of the hole is all wrong compared to that of the Mexican guy. And it looks like it might actually be part of someone's anus.

  • Rex Morgan||

    You are correct, Colonel. It's an experimental transplant technique, using an anus from a cadaver.

  • hermoda||

    Why everyone doesn't switch to snus is beyond me. You get a stronger effect that doesn't stink up your clothes and locale. Still, an important lesson learned in Norway is that you would rather have a lady smoke than having that bulbous upper lip.

  • Colonel_Angus||

    It depends whether you like scratching up your gums or fucking up your throat. Both of which you get used to over time. All I want is a chill every now and then cigarette.

  • Colonel_Angus||

    Whatever happened to cheaper cigarettes in tobacco states? Its not even worth buying them out of state anymore except if you live in one of a couple of retardedly outrageous states, which surprisingly is not the one I currently reside.

  • Sevo||

    Colonel_Angus|3.19.12 @ 9:34PM|#
    "Whatever happened to cheaper cigarettes in tobacco states?"

    You think the tax man is less active in tobacco states?
    If the gov't can tax it, it will.

  • Colonel_Angus||

    A few years back, some of them did have lower taxes.

  • WI||

    The federal government imposed a $1.00 per pack tax on cigarettes. It goes toward the S-CHIP program. So every puff I take helps kids in need. Maybe you should consider taking up smoking.

  • WI||

    I would like to point out that the president has not quit smoking and therefore helps save children.

  • ||

    Let Me Be Clear

    *long, slow drag on a cig*

    I'm doing this For The Children.

  • WI||

    You are a LIAR! The president has quit smoking because it is bad and so should you.

    Except when he smokes beause he has a difficult job.

  • The Supreme Soviet||

    Is like our dachas, yes? Laboring so for The People must have its rewards.

  • Transparency Inaction||

    the law authorizes the Food and Drug Administration (FDA) to suppress even truthful information about a "modified risk" product ... if it decides such censorship is necessary

    W.T.F? Information about a "modified risk" product is CLASSIFIED?!

  • Transparency Inaction||

    We should ban cigarettes.

  • shrike||

    I love Elvis! Jipping an' Jopping! Git yer bucket out boys!

    Reminds me of poster "John" a sad sack fuckhole from Mayberry RFD.

  • spencer||

    motherfuckinggoddamned shit. So fucking stupid and illogical.

  • ||

    This is a fabulous rant in response to Charles Murry's claim that men who don't work enough or get married should be shamed.

    So to Murray, I would say this: rewrite your program of shaming so that it better reflects reality, the VERY REALITY you yourself identified. In descending order of lethality, your death star powered shaming ray should designate the following targets:

    Shame women who actively try to have bastard hellion spawn out of wedlock. “Oh, the child won’t have a father around?” BACKTURN

    Shame women with kids from multiple fathers. “Half sister?” BACKTURN

    Shame women who get fat and thus make themselves unattractive to men and artificially tighten the dating market. “Those jeans are a little small on you.” BACKTURN

  • ||

    Shame women who date jerks. “Oh, so the guy you’re seeing has no job and gave you Skittles for your birthday?” BACKTURN

    Shame sluts. “Nice tramp stamp. Just the thing to make a guy want to marry you.” BACKTURN

    Shame eat, pray, love SWPL divorcees. “Was it worth destroying your kids’ emotional health for a romp with Alfonso?” BACKTURN

    Shame Samantha types whose weekly highlight is Sunday brunch mimosas. “In real life, Samantha dies alone with her cats nibbling on her flesh for sustenance.” BACKTURN

    Shame aging single cougars. “You should really consider settling for a nice, reliable man. You’re not getting any younger, you know.” BACKTURN

    Shame “empowered”, overeducated women who wave their degrees around men like it matters. “You’ve just made it harder on yourself to find love.” BACKTURN

  • ||

    Only after you’ve shamed the above basket cases should you move on to shaming jobless, video gaming and porn watching men.

    http://heartiste.wordpress.com.....d-shaming/

  • shrike||

    Did you know that all people who smoke cigarettes die?

  • Sevo||

    ^?!
    Either bad spoof or shriek got a sense of proportion.
    Hard to believe the latter.

  • WI||

    Did you know that all people die?

  • ||

    holyshitomgwtfbbq!!111oneoneoneone

    EVERYONE PANIC!!!!!!!

  • WI||

    I have a better chance of dying on a freeway, but I will still drive on them because they get me to work faster.

  • shrike||

    This guy is so smart. I will do whatever he says.

  • WI||

    Please don't take my word for it.

  • shrike||

    We should ban freeways.

  • WI||

    Brilliant. Those bastards who want to drive 80 should be federally punished. They want to get to work quicker so they can jack off to the internet not work. Obviously this is the solution, thank you shrike.

  • playboy.com||

    What if they want to get to work to jack off to us???

  • let's assume i was straight||

    I have a big cock at home so a freeway is not assumed. I still would find a way to F*** my boyfriend no matter how much the govt says i can't i will.

  • Kiki oily perfection||

    The shots of Kiki pinching her nipples were off the charts sexy!

    kiki never disappoints! wish I could grab her ass like that! lol

    GRRROWL!!! Hegre, you have done yourself proud today with this photo set. Now, what would be even better is to shoot a photo series/video featuring KIKI & MURIEL (or TEREZA or VALERIE or ENGELIE or NIKOLA) fully nude and oiled-down together. (Any thoughts on staging a video showing 2 fully nude, oiled-down women masturbating each other?)

  • Sevo||

    Yes, but WI, are they free to gambol? I mean, let's keep things in perspective.

  • WI||

    Well thank you shrike. I believe all taxes should be abolished except excise and export taxes. That will pay for the government. Then the rest of the money can provide for the national defense. The JSF is the biggest wste of govt money on the face of the planet, and the moon.

  • let's assume i was straight||

    This is serious the JSF has gone over budget 48 times and no one cares. If this one platform was to go away the defense budget would actually stay in budget.

  • Lewis H||

    Still no article on Robert Bales treatment?

  • omnibot||

    sound good to me lol

  • shrike||

    Pleasure is evil, it can lead to addiction, and therefore it should be banned.

  • let's assume i was straight||

    i must disagree. I love taking it. I am pretty sure I am not addicted but I was born this way. Thanks for making my preference an addiction. Born this way.

  • shrike||

    I hate those queers

  • Marjana curvaceous||

    Her voluptuous flesh, bouquet of vanilla and freshly baked bread as my tongue sought her sticky darkness. The burning of desire as I emerged from pink mists, pools of pleasure in her soft ripe fruit, savouring her rhapsodies, my mouth sated on honeyed pearl...

  • Marjana curvaceous||

    Four and a half months... It's been an excruciating time, but patience has paid off. God, this woman's eyes... I imagine they can both kill with a glance *and* resurrect the dead, like only a true woman in heart, soul and body can. I have no idea if she has sets with other photographers, but her bio suggests she has none. Which means that the chemistry between her and Petter is very special indeed: I cannot see any other photographer having this level of 'rapport' with her. Ever. I'm not a 'big-tit-lover' kind of guy, but Marjana can convert me if she's up for the job. Until then, I am always eagerly waiting for More Marjana Magic. And today is a good day indeed.

  • Marjana curvaceous||

    I'm so glad to see a new photoset from Marjana. She is my favorite model here, and such a breathtaking beauty. Thanks, and more please!

  • Marjana curvaceous||

    I love Marjana. Fract I agree with you 100%.

  • rather||

    The story isn't the  court fight; it's the first inaugural campaign from the Centers for Disease Control will  and our ante up of $54 million on the 411

  • Jeffersonian||

    Let's hope this truth requirement starts being applied to this year's political commericals. I'd love to see Henry Waxman mumbling over a "Totalitarian Dickweed" banner.

  • shrike||

    We should ban porn.

  • of course||

    that will prevent us gays from being so ...
    gay

  • grt up, get down||

    party hardy

  • party in the house tonight||

    we just want to see ya...

  • ohhhh....||

    i'm goin at it yeahhhhhhhh
    go queers

  • xztplll||

    I'm very glad to find you. It's very useful. We are a professional foreign trade
    website,mainly engaged sale in all kinds of nike boots
    http://www.dunkpascher.org

  • every day im shuffle in||

    everybody rockin in the house tonight

  • party rockin in the hous tonig||

    .they just gonnna see ya...everybody in the housse tonight...lose your mind... everybody just have a goodn...time...

  • ||

    OMG this is such a double standard!!!!

    if this guy wasn't a cop he'd BE IN JAIL and awaiting trial

    he shot an unarmed black man!!!!! it's murder!!!!!!

    darn double standard!

    oh wait, he's not a cop. into the reasonoid memory hole...

    because only cops get the benefit of not being arrested when they shoot unarmed men in public

    it's a double standard... i swearz

  • ||

  • Beats By Dr Dre Ibeats||

    cheap beats headphones http://www.cheapbeatsdrdre.net

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online

  • Video Game Nation: How gaming is making America freer – and more fun.
  • Matt Welch: How the left turned against free speech.
  • Nothing Left to Cut? Congress can’t live within their means.
  • And much more.

SUBSCRIBE

advertisement