By Jonathan Stempel
(Reuters) -A federal appeals court on Thursday said a U.S. government requirement that cigarette packs and advertisements contain graphic warnings about the dangers of smoking is constitutional, in a victory for the Biden administration and a defeat for the tobacco industry.
Reversing a lower court ruling, the 5th U.S. Circuit Court of Appeals in New Orleans found that the 11 warnings required under a 2020 Food and Drug Administration rule were “factual and uncontroversial,” and satisfied the First Amendment.
RJ Reynolds, ITG Brands, Liggett and other tobacco companies complained that the warnings violated their free speech rights by compelling them to endorse images that they said misrepresented or exaggerated the harms from smoking.
Lawyers for the tobacco companies did not immediately respond to requests for comment.
The FDA and the Department of Health and Human Services, which both appealed the lower court ruling, did not immediately respond to similar requests.
Though smoking has declined significantly over the decades, nearly one in eight American adults still smoke, and cigarette smoking kills more than 480,000 Americans a year, government data show.
The FDA rule adopted in March 2020 during the Trump administration required that warnings about the risks of smoking occupy the top 50% of cigarette packs and top 20% of ads.
These warnings included depictions of feet with amputated toes, a baby whose fetal growth had been stunted, and a woman with a large protrusion in her neck caused by cancer, along with written descriptions of various health risks.
The FDA said the warnings were justified by the government interest in promoting greater understanding of the health risks from smoking, and reducing confusion and deception.
Tobacco companies countered that the warnings went far beyond text warnings that had been allowed since 1984, including that smoking causes lung cancer and quitting reduces health risks.
But in a 3-0 decision, Circuit Judge Jerry Smith said the graphic warnings conveyed facts about the benefits of reduced smoking, and were not unconstitutional because they “may induce emotions” or relate to ideological or political concerns.
He also said the warnings were not unduly burdensome, saying tobacco companies still had plenty of space on cigarette packs and ads to convey their own messages.
In supporting the rule, the Biden administration said graphic warnings were necessary because text-only warnings failed to deter teenagers from smoking.
The appeals court returned the case to U.S. District Judge J. Campbell Barker in Tyler, Texas, to assess whether the FDA rule violated federal administrative law.
Barker did not address that argument when striking the rule down in December 2020.
(Reporting by Jonathan Stempel in New York; Editing by Aurora Ellis)
