In a blow to the Nanny State, a federal judge has granted an injunction blocking the Food and Drug Administration’s attempt to force cigarette manufacturers to prominently feature disturbing pictures showing diseased or even dead smokers on cigarette cartons.
U.S. District Judge Richard Leon ruled that the FDA crossed the line from mandating warning marks to mandating advocacy — crossing from regulation to infringement on basic rights. He granted the injunction after determining the lawsuit, launched by cigarette manufacturers, is likely to succeed.
A judge on Monday blocked a federal requirement that would have begun forcing tobacco companies next year to put graphic images including dead and diseased smokers on their cigarette packages.
U.S. District Judge Richard Leon ruled that it’s likely the cigarette makers will succeed in a lawsuit to block the requirement. He stopped the requirement until the lawsuit is resolved, which could take years.
Leon found the nine graphic images approved by the Food and Drug Administration in June go beyond conveying the facts about the health risks of smoking or go beyond that into advocacy – a critical distinction in a case over free speech.
The packaging would have included color images of a man exhaling cigarette smoke through a tracheotomy hole in his throat; a plume of cigarette smoke enveloping an infant receiving a mother’s kiss; a pair of diseased lungs next to a pair of healthy lungs; a diseased mouth afflicted with what appears to be cancerous lesions; a man breathing into an oxygen mask; a cadaver on a table with post-autopsy chest staples; a woman crying; a premature baby in an incubator; and a man wearing a T-shirt that features a “No Smoking” symbol and the words “I Quit”
“It is abundantly clear from viewing these images that the emotional response they were crafted to induce is calculated to provoke the viewer to quit, or never to start smoking – an objective wholly apart from disseminating purely factual and uncontroversial information,” Leon wrote in his 29-page opinion. He pointed out that at least some were altered photographs to evoke emotion.
Indeed, there’s a big difference between providing facts and just trying to scare people through tactics playing on emotions.
A photo of a cancer-stricken patient provides no more factual information than a warning mark that informs customers the product can cause cancer. The photo is intended to play on people’s emotions. whereas they would have perhaps made the choice to take the risk provided the factual information, the photo could scare them away.
Again, that crosses the line between informed decisions based on factual information and scare tactics intended to evoke an emotional response. As Leon ruled, it goes from regulatory warning marks to anti-smoking advocacy mandates on private companies. You can’t do that. You can’t make a company provide information, but you can’t make the company support or oppose legal activity.
Federal Judge Blocks FDA’s Attempt to Force Disease Pictures on Cigarette Cartons