Philip Morris Sues FDA Over Plans for Graphic Warning Labels
(Bloomberg) -- Philip Morris USA Inc. sued the Trump administration over requirements that tobacco companies put large, graphic warning labels featuring images of premature babies and bloody organs on cigarette packs by 2021.
The maker of Marlboro cigarettes for the U.S. market said in its suit, filed Wednesday in Washington, that the new rules from the U.S. Food and Drug Administration violate First Amendment free-speech rights. The proposed warning labels would cover half of the exterior of cigarette packs, which is “an unprecedented amount of premium real estate,” the company said.
March 17, 2020“Plaintiffs know of no other government-mandated disclosure regime that has ever attempted to seize so much speech, let alone to seize the most prominent and visible locations on packaging and advertising for the government's messages,” Philip Morris, a unit of Altria Group Inc., says in its complaint.
The FDA declined to comment on the lawsuit.
Under the FDA's plan, announced in March, cigarette packs would have to include one of 11 images intended to show the potential health consequences of smoking. They include a child breathing with the aid of an oxygen mask, a woman with her neck bulging from a tumor, a man with scars from a heart surgery, feet with amputated toes and a depressed-looking man next to a warning about erectile dysfunction.
Legal Sequel
The lawsuit sets up a sequel to an earlier legal battle in which cigarette makers prevailed over the FDA. The federal appeals court in Washington ruled in 2013 that a previous FDA plan to require graphic warnings on cigarette packs violated the First Amendment rights of tobacco companies by requiring them “to disparage their own products with shocking and inflammatory graphic images.”
The battle is rooted in Congress's passage of the Family Smoking Prevention and Tobacco Control Act of 2009, which tasked the FDA with replacing the text-only Surgeon General's warning with images that would more forcefully illustrate the dangers of smoking.
Philip Morris cited the previous ruling in Wednesday's complaint, saying the appeals court found the graphic warnings impinged on free-speech rights but “did not directly and materially advance FDA's asserted interest in reducing smoking rates.” The company said the images were instead intended to elicit an emotional response, noting the image of the premature baby was designed to trigger a “need in adult viewers to comfort the child and alleviate its distress.”
The company also said the warnings “would mislead consumers about the relative risks of smoking-related health consequences, and the government has no interest in such misinformation,” citing the warnings about toe amputations and erectile dysfunction.
©2020 Bloomberg L.P.
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