Burning Mad: Cigarette Companies Angry Over Warnings

Starting in September 2012, every pack of cigarettes sold in the United States will feature a graphic photo of smoking’s effects. The large ads will be emblazoned with a message and the number 1-800-QUIT NOW.

The Food and Drug Administration revealed the new labels last Tuesday, selecting nine images from 36 potential warnings. The images portray ghastly effects of smoking with simple message superimposed on top. For instance, a corpse with a sewn up chest, with a warning below: Smoking can kill you.

The attention-grabbing picture campaign is quite stark and disturbing, but that’s precisely the point, according to officials. FDA Commissioner Margaret Hamburg said the administration was seeking a warning that consumers couldn’t ignore.

“This will be a dramatic change in what a cigarette package looks like, no doubt about it,” Hamburg said. “It will change the consumer response to a package of cigarettes, but frankly, that’s what we want.”

Experts in both the FDA and Health and Human Services feel that the current labels were ineffective because they are small, text-only, and haven’t changed in 25 years. The new labels will have none of these problems, especially size. By FDA guidelines, the graphic warnings must cover 50% of packages and 20% of all cigarette ads.

“With these warnings, every person who picks up a pack of cigarettes is going to know exactly what risk they’re taking,” said Kathleen Sebellius, Secretary of Health and Human Services.

But tobacco giants are crying fowl, and two major companies claim the Constitution will back them.

Both R.J Reynolds and Phillip Morris opposed the warning labels in letters to the FDA. The letter from Phillip Morris claiming the following:

“Any government requirement that compels a private entity to carry a message not of its own choosing raises constitutional concerns…To the extent the FDA were to select warnings based on their ability to evoke negative or cognitive reactions—not their ability to objectively inform consumers about the health risks of smoking—such warnings would not pass constitutional muster” (CNN.)

In 2009, Congress passed The Family Smoking Prevention and Tobacco Control Act (FSPTCA,) allowing government administrations to regulate the marketing and labeling of tobacco products. The FSPTCA stipulates that cigarette packs have larger and more visible graphic health warnings, and thus far everything the FDA has done is within the law. Thus, in order to get its case heard, big tobacco will have to claim that the law itself is unconstitutional. This means they will have to appeal to the courts.

In early dealings with the courts, big tobacco had quite a bit of sway, but recent lawsuits suggest the tide has turned. In the early 1950’s, when it became known that cigarettes caused cancer, many suits were brought against tobacco manufacturers to no avail. In the 80’s, when addiction was added to the carcinogenic effects of smoking as grounds for redress, plaintiffs were still unsuccessful largely because tobacco companies argued that plaintiffs assumed the risk of cancer when they began smoking. But lately things have changed.

In 1999, the government sued tobacco on the grounds that it had spent billions caring for those who became sick because of smoking.  The two reached an out-of-court settlement in the amount of $206 billion dollars. This settlement came on the heels of numerous wins by individual plaintiffs after documents were leaked showing that tobacco executive made a concerted effort to conceal the fact that their product was addictive. As part of the settlement deal, tobacco companies agreed to restrict certain sorts of advertising, make annual payments to states for smoking-related illness, and fund the National Public Education Foundation dedicated to preventing kids from smoking.

The latest legislation coming out of Capital Hill suggests that the government is taking a more proactive role in stopping smokers before they get sick. Obviously, this is ideal for public health as well as a good example of how litigation can spur much-needed social changes.

Currently, smoking is the number one cause of preventable death in the United States, claiming about 443,000 lives per year.  Furthermore, the Center for Disease Control reports an estimated 8 million people in the US are currently living with a disease directly tied to smoking. CDC data shows that smoking is responsible for 90% of lung cancer deaths in men and 80% in women.

Economically, tobacco-related disease and health problems cost $95 billion per year, according to Thomas Glynn of the American Cancer Society. Additionally, the CDC estimates that cost at $200 billion when lost productivity is added.

From these data, it is clear that smoking is not worth the risk. Nonetheless, smoking remains popular because it is so addictive (not to mention, a stress relief.) CDC estimates that 20% of American adults smoke.

If you would like to quit smoking, please call 1-800-QUIT Now to get started on the right path. If you have questions regarding the legal dimensions of tobacco litigation,  please feel free to contact us.

–Steven Flores

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