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Business group weighs in on cigarette label suit

Tuesday, January 31, 2012
(Updated 11:28 am)

RICHMOND, Va. (AP) — The U.S. Chamber of Commerce is weighing in on a lawsuit over graphic cigarette warning labels that include the sewn-up corpse of a smoker and a picture of diseased lungs, saying the federal government has no legitimate authority to take space on a tobacco company's packaging or advertising to persuade consumers not to buy the product.

The pro-business lobbying group filed a friend of the court brief with the U.S. Court of Appeals in Washington late Monday in the lawsuit brought by some of the largest U.S. tobacco companies, including R.J. Reynolds Tobacco Co. and Lorillard Tobacco Co., challenging the Food and Drug Administration's plan to require the new labels be placed on cigarette packs later this year.

A U.S. District Court judge in November blocked the labels while deciding whether they violate the companies' free speech rights, ruling that it is likely the cigarette makers would succeed in a lawsuit. The FDA has appealed that decision and oral arguments are set for April.

In its filing, the group that represents the interests of more than 3 million companies and professional organizations in the U.S. wrote that that allowing the warning labels would be a "radical departure from traditional government efforts to regulate speech insofar as they force commercial enterprises to disparage the very products that they are lawfully marketing."

The chamber added that the labels are "expressly designed to provoke adverse emotional reactions and inspire fear above and beyond any factual disclosures related to the hazards associated with smoking."

The tobacco companies have questioned the constitutionality of the labels, saying the warnings don't simply convey facts to inform people's decision whether to smoke but instead force the cigarette makers to display government anti-smoking advocacy more prominently than their own branding. They also say that changing cigarette packaging will cost millions of dollars.

Meanwhile, the FDA has said that the public interest in conveying the dangers of smoking outweighs the companies' free speech rights.

The FDA last June approved nine new warning labels that companies are to print on the entire top half of cigarette packs, front and back. The new warnings, each of which includes a number for a stop-smoking hotline, also must constitute 20 percent of cigarette advertising, and marketers are to rotate use of the images.

One label depicts a corpse with its chest sewn up and the words "Smoking can kill you." Another label shows a healthy pair of lungs beside a yellow and black pair with a warning that smoking causes fatal lung disease.

Joining North Carolina-based R.J. Reynolds, owned by Reynolds American Inc., and Lorillard Tobacco — owned by Lorillard Inc. — in the lawsuit are Commonwealth Brands Inc., Liggett Group LLC and Santa Fe Natural Tobacco Company Inc.

Richmond-based Altria Group Inc., parent company of the nation's largest cigarette maker, Philip Morris USA, which makes top-selling Marlboros, is not a part of the lawsuit.

The free speech lawsuit is separate from a lawsuit by several of the same companies over the Family Smoking Prevention and Tobacco Control Act. That law, which took effect two years ago, cleared the way for the more graphic warning labels. But it also allowed the FDA to limit nicotine and banned tobacco companies from sponsoring athletic or social events or giving away free samples or branded merchandise.

A federal judge upheld many parts of the law, but the case is now pending before the U.S. 6th Circuit Court of Appeals in Cincinnati.

While the tobacco industry's latest legal challenge may not hold up, it could delay the new warning labels for years. And that is likely to save cigarette makers millions of dollars in lost sales and increased packaging costs.

Tobacco companies are increasingly relying on their packaging to build brand loyalty and grab consumers. It's one of few advertising levers left to them after the government curbed their presence in magazines, billboards and TV.

Michael Felberbaum can be reached at http://www.twitter.com/MLFelberbaum.
 

Accompanying Photos

Photo Caption: File images provided by the U.S. Food and Drug Administration.

Comments

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The_Doctor

January 31, 2012 - 2:23 pm EST

If smoking is so bad (and I'm not disagreeing with that), then why don't we just ban the product instead of playing games? No more cigarettes, cigars, or pipe tobacco. Why not ban snuff and chewing tobacco while we're at it. Wouldn't that mesh nicely with our cradle-to-grave nanny society?

I guess the tax money is too important.

Interested

January 31, 2012 - 5:31 pm EST

And if we aren't going to ban the product I, as a taxpayer, would appreciate it if our elected officials wouldn't pass legislation that will undoubtedly end up in the courts where my tax dollars will be wasted defending the indefensible.

overtaxed

February 1, 2012 - 1:47 am EST

" The U.S. Chamber of Commerce is weighing in on a lawsuit over graphic cigarette warning labels that include the sewn-up corpse of a smoker and a picture of diseased lungs,"
First of all, the picture of the "sewn-up corpse of a smoker" is bs.

http://www.smokernewsworld.com/new-graphic-cigarette-warnings/

Secondly, if the FDA is serious about the "health of the nation" then it should also put out information on the dramatically rising number of young people dying from prescription drug overdose.

Something else to think about, if the FDA is as credible as they claim to be, why do I see these ads daily that claim "if you or a loved one were prescribed the drug, (fill in the blank), then you may be entitled to compensation".

Some of these FDA APPROVED DRUGS have been available less than 5 years and are already subject to "Wrongful Death Lawsuits".

Btw, you remember all that money the states extorted from "Big Tobacco" back in '98 they said would repay Medicaid for the treatment of sick smokers and fund anti-smoking campaigns designed to curb teen smoking?
Guess what, looks like some states used that money to pay off other debt and balance budgets.

From Wikipedia.
"Receipts by the statesStates were to receive over $206 billion over 25 years:

Up-front payments - $12.742 billion.
Annual Payments, beginning April 15, 2000 - $183.177 billion through 2025.
Strategic Contribution Fund, 2008-2017 - $8.61 billion.
National Foundation ($250 million over 10 years).
Public Education Fund (at least $1.45 billion 2000-2003).
State Enforcement Fund ($50 million, one-time payment).
National Association of Attorneys General ($1.5 billion over next 10 years). "

So from 1998 to 2008 the National Association of Attorneys General collected 1.5 billion dollars.
According to their website the NAAG has 56 members.
Do the math and you will see this case is no different from most. Lawyers get rich off the backs of victims.

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