FDA's Graphic Cigarette Labels Rule Goes Up In Smoke

By: AP/CBS (Posted by Melissa Brunner)
By: AP/CBS (Posted by Melissa Brunner)
The U.S. government won

This combo made from file images provided by the U.S. Food and Drug Administration shows two of nine new warning labels cigarette makers would have to place on U.S. packs by Fall, 2012. / AP Photo/U.S. Food and Drug Administration, File

RICHMOND, Va.Graphic tobacco warning labels depicting a man exhaling cigarette smoke through a tracheotomy hole in his throat or an infant surrounded by cigarette smoke won't be coming to U.S. cigarette packs after all.

The U.S. government won't appeal a court decision blocking it from requiring tobacco companies to put large graphic health warnings on cigarette packages, ending a lengthy legal battle.

In a letter obtained by The Associated Press, Attorney General Eric Holder says the Food and Drug Administration will go back to the drawing board and propose new labels.

The Food and Drug Administration had proposed nine graphic warning labels in June 2011, which had faced opposition from tobacco companies since, spurring legal battles.

A judge ruled last year that the requirement violated First Amendment free speech protections. An appeals court upheld that ruling.

The government had until Monday to ask for a U.S. Supreme Court review.

"In light of these circumstances, the Solicitor General has determined ... not to seek Supreme Court review of the First Amendment issues at the present time," Holder wrote in a Friday letter to House Speaker John Boehner notifying him of the decision.

Some of the nation's largest tobacco companies, including R.J. Reynolds Tobacco Co., sued to block the mandate to include warnings on cigarette packs as part of the 2009 Family Smoking Prevention and Tobacco Control Act that, for the first time, gave the federal government authority to regulate tobacco. The nine labels originally set to appear on store shelves last year would've represented the biggest change in cigarette packs in the U.S. in 25 years.

Tobacco companies increasingly rely on their packaging to build brand loyalty and grab consumers -- one of the few advertising levers left to them after the government curbed their presence in magazines, billboards and TV. They had argued that the proposed warnings went beyond factual information into anti-smoking advocacy.

The government, however, argued the images were factual in conveying the dangers of tobacco, which is responsible for about 443,000 deaths in the U.S. a year.

The warning labels were to cover the entire top half of cigarette packs, front and back, and include the phone number for a stop-smoking hotline, 1-800-QUIT-NOW.

In a statement on Tuesday, the FDA said it would "undertake research to support a new rulemaking consistent with the Tobacco Control Act." The FDA did not provide a timeline for the revised labels.

Warning labels first appeared on U.S. cigarette packs in 1965, and current warning labels that feature a small box with text were put on cigarette packs in the mid-1980s. Changes to more graphic warning labels that feature color images of the negative effects of tobacco use were mandated in a law passed in 2009 that, for the first time, gave the federal government authority to regulate tobacco.

The share of Americans who smoke has fallen dramatically since 1970, from nearly 40 percent to about 19 percent. But the rate has stalled since about 2004, with about 45 million adults in the U.S. smoking cigarettes. It's unclear why it hasn't budged, but some market watchers have cited tobacco company discount coupons on cigarettes and lack of funding for programs to discourage smoking or to help smokers quit.

In recent years, more than 40 countries or jurisdictions have introduced labels similar to those created by the FDA. The World Health Organization said in a survey done in countries with graphic labels that a majority of smokers noticed the warnings and more than 25 percent said the warnings led them to consider quitting.

Joining North Carolina-based R.J. Reynolds, owned by Reynolds American Inc., and Lorillard Tobacco, owned by Lorillard Inc., in the lawsuit are Commonwealth Brands Inc., Liggett Group LLC and Santa Fe Natural Tobacco Company Inc.

Richmond, Va.-based Altria Group Inc., parent company of the nation's largest cigarette maker, Philip Morris USA, which makes the top-selling Marlboro brand, is not a part of the lawsuit.

The case is separate from a lawsuit by several of the same tobacco companies over other marketing restrictions in the 2009 law. Last March, a federal appeals court in Cincinnati ruled that the law was constitutional. The companies in October petitioned the U.S. Supreme Court to review that case.

© 2013 CBS Interactive Inc. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed. The Associated Press contributed to this report.


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