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.