Judge questions use of graphic images on cigarette packages

9/21/2011

WASHINGTON — A federal judge peppered a government lawyer with questions Wednesday expressing doubts about whether the Food and Drug Administration can force tobacco companies to post graphic images on their cigarette packages showing the health effects of smoking.

In a two-hour hearing, U.S. District Judge Richard Leon closely questioned Justice Department lawyer Mark Stern on whether the nine graphic images proposed by the FDA convey just the facts about the health risks of smoking or go beyond that into advocacy — a critical distinction in a case over free speech.

The cigarette companies sued in an effort to block the FDA from enforcing the requirement, which would go in effect a year from now.

The images include a cloud of cigarette smoke within inches of a baby’s face; a pair of healthy lungs next to the diseased lungs of a smoker; a smoker’s stained teeth and a lip diseased by cigarettes; and a dead smoker on an autopsy table with a line of surgical stitches in his chest.

If the judge were to conclude the images amount to advocacy, that would make it more likely that the tobacco companies would be able to block the government’s latest move in regulating the industry.

Leon said he hopes to issue a ruling by the end of October.

Lawyers for the tobacco companies argued that the government is free to tell people how to live — through steps such as enacting smoking bans on teenagers and by requiring written, factual warnings on the sides of cigarette packages from the surgeon general about the effects of smoking.

But what the government cannot do is “conscript” the companies “into an anti-smoking brigade,” noted First Amendment lawyer Floyd Abrams told the judge.

The judge questioned Stern about why the images did not amount to advocacy. “What do you say is the line” between advocacy and fact? he asked Stern.

“This is not an ordinary product” and the images coupled with written warnings are designed to communicate the dangers to the public — including youngsters as well as adults, Stern replied.