The cigarette industry is going to court to battle proposed new FDA rules that would force the companies to post graphic images on their packaging. Four of five of the largest tobacco companies led by R.J. Reynolds and Lorrilard Tobacco Co. filed a First Amendment based lawsuit contending that the government forcing the cigarette companies to post graphic images violates their free speech rights, which also reduces the area on their on packaging to display their own brand name or images. The cigarette industry believes that some of the images which include a sewn-up corpse are outrageous and bad for their industry.
Two years ago, The Family Smoking Prevention And Tobacco Control Act became law, and the tobacco industry also challenged that law in court as well. However, the use of the First Amendment as a grounds to challenge new proposed tobacco rules is a new tactic by the big tobacco companies.
The tobacco industry operates in a strange legal environment regardless. Their products are harmful to both users and nonusers alike, yet remain legal unlike other defective or dangerous products which are forced off the market by government safety actions. Further, while powerful industries like the automobile industry are forced to heavily control their air pollution that automobiles create, there are no environmental rules limiting cigarette emissions. For example, just one lit cigarette can destroy the air quality of several thousand cubic feet of air creating health threats for nonusers of middle ear infections, asthma and cancer risks. Injury from cigarettes are one of the reasons for the health care crisis in the United States, where the public health care system spends tens of billions each year to pay for cigarette related health problems. Further, American society is willing to accept a reduction in both lifespan and quality of life to keep cigarettes legal despite new interests in environmentalism and healthy foods. The fact of the matter is that cigarettes probably reduce the lifespan and quality of life for all Americans erasing almost any environmental or healthy food gains elsewhere.
Another strange legal quirk about cigarette smoking is that it allows the unwanted distribution of a drug, nicotine, to others as secondhand smoke. Nicotine helps to destroy the quality of REM sleep and has other health consequences. And nicotine is controversial because the levels of the drug have continued to rise in cigarettes in recent years despite tobacco industry claims that they haven’t been manipulating the drug. Between 1998 and 2005, independent lab tests have claimed average yearly 1.6% increases in nicotine levels in cigarettes, strongly suggesting that the tobacco industry is deliberately manipulating nicotine levels to keep cigarettes addictive to users. This nicotine drug manipulation is part of the reason that the FDA was given authority over tobacco by Congress. Many smokers just can’t help this drug addiction. even if they are being harmed by cigarettes. Cigarettes also keep many lower income persons in poverty, and are a favorite of the mentally ill. It is estimated that up to 80% of persons with a mental illness smoke to cope with anxiety or other issues as a form of self-medication, which is a very high figure compared to around 20% of all adults who smoke.
The tobacco industry is looking toward to the future by divesting itself into other business opportunities in the event that cigarettes someday are further restricted or else even become illegal. While new brands of cigarettes hit the market with some regularity, government takes baby steps chipping away at the industry mostly through advertising and packaging restrictions where the graphic labels proposal will become the next legal battleground for the tobacco industry to defend.
Unless the tobacco industry is successful in court overturning the new FDA rule, the graphic warning images will cover both the front and back panels on cigarette packages and will also cover at least 20% of the area of every advertisement as well. It will now be up to the courts to decide whether the new FDA packaging rules take effect or not on one hand, as well as a new test for the limits of free speech. Rather than an outright ban of a dangerous or defective product, the huge new graphic warning labels seem like a strange way for government to control bad products.