Tobacco Companies Resist Graphic Labels

With one in five blacks still smoking, a judge's decision could affect the health of millions.

Secretary of Health and Human Services Kathleen Sebelius (Getty Images)

A federal court judge expects to rule by late October on whether the Food and Drug Administration can require new, strident text warnings and images to be added to cigarette packaging that could affect the one in five African Americans who still smoke.

At a Sept. 21 hearing in the U.S. District Court for the District of Columbia that ran well over its allotted time, tobacco-industry lawyers told Judge Richard J. Leon that the FDA, part of the U.S. Department of Health and Human Services, is free to tell Americans how to live, counseling them not to eat fatty foods, drink or smoke. But the public health agency cannot "conscript" cigarette makers into an antismoking brigade to act as the government's "mouthpieces," said Floyd Abrams, an attorney who specializes in First Amendment cases and who represents one of five cigarette makers seeking the preliminary injunction.

"This is not an ordinary product," countered Mark B. Stern, an attorney for the U.S. Department of Justice. "This kills 440,000 people a year."

Asked by the judge whether the government could similarly warn chocolate lovers by adding photos of dentists with drills on candy labels, Stern said that the federal government's interest "isn't in preventing cavities. It's preventing death."

Earlier this summer, the FDA quickly flexed regulatory authority granted by Congress and released graphic warning labels for cigarettes that represented the most significant change to U.S. cigarette packages in 25 years.

Among the images: a man smoking through the tracheotomy hole in his throat, with the warning that "cigarettes are addictive"; a sobbing woman next to a warning about secondhand smoke's link to fatal lung disease for nonsmokers; and a pudgy baby menaced by a puff of smoke with the warning that tobacco smoke "can harm your children."

The five cigarette manufacturers struck back just as quickly, filing a request for a preliminary injunction that was heard at the Sept. 21 hearing. Should Leon grant the injunction in the high-profile case, the introduction of images labeled "dire" by some and "bold" by others could be postponed.

While smoking rates declined modestly among all Americans from 2005 to 2010, resulting in 3 million fewer smokers, 20.6 percent of African Americans still smoke, according to the Centers for Disease Control and Prevention. African Americans make up the third-highest percentage of smokers by ethnicity, lower than the 31.4 percent of Native Americans and the 21 percent of whites who smoke, the CDC reports. While African Americans smoke fewer cigarettes than whites, they suffer disproportionately from deadly and preventable diseases associated with smoking, according to the American Lung Association.

In its 55-page written statement to the district court, the FDA argued that current cigarette warnings, in place since 1984, are virtually "invisible" and require a college reading level to fully grasp. Citing research conducted around the globe, the agency says that adding photographs and graphics helps make the public health message easier to digest and more memorable for younger, less educated consumers, and could help reverse years of misinformation.

"For decades, cigarette manufacturers systematically deceived the public and regulators regarding the health risks and addictiveness of their products," the FDA response notes. "Congress, fully aware of that history, enacted the new warning requirement to inform consumers of the health risks of cigarettes that the manufacturers had so long been at pains to obscure."