The U.S. Chamber of Commerce, weighing in on a lawsuit over graphic cigarette warning labels, says the federal government has no legitimate authority to take space on a tobacco company's packaging or advertising to persuade consumers not to buy the product.
The pro-business lobbying group filed a friend of the court brief with the U.S. Court of Appeals in Washington late Monday in the lawsuit brought by some of the largest U.S. tobacco companies, including R.J. Reynolds Tobacco Co. and Lorillard Tobacco Co. The suit challenges the Food and Drug Administration's plan to require that graphic new warning labels be placed on cigarette packs later this year. The labels include the sewn-up corpse of a smoker and a picture of diseased lungs.
A U.S. District Court judge in November blocked the labels while deciding whether they violate the companies' free speech rights, ruling that it is likely the cigarette makers would succeed in the lawsuit. The FDA has appealed that decision and oral arguments are set for April. Oral arguments on motions for summary judgment over whether to bar the new labels are scheduled for Wednesday in U.S. District Court.
In its filing, the group that represents the interests of more than 3 million companies and professional organizations in the U.S. wrote that that allowing the warning labels would be a "radical departure from traditional government efforts to regulate speech insofar as they force commercial enterprises to disparage the very products that they are lawfully marketing."
The chamber added that the labels are "expressly designed to provoke adverse emotional reactions and inspire fear above and beyond any factual disclosures related to the hazards associated with smoking."
The tobacco companies have questioned the constitutionality of the labels, saying the warnings don't simply convey facts to inform people's decision whether to smoke but instead force the cigarette makers to display government anti-smoking advocacy more prominently than their own branding. They also say that changing cigarette packaging will cost millions of dollars.
Meanwhile, the FDA has said that the public interest in conveying the dangers of smoking outweighs the companies' free speech rights.
The FDA last June approved nine new warning labels that companies are to print on the entire top half of cigarette packs, front and back. The new warnings, each of which includes a number for a stop-smoking hotline, also must constitute 20 percent of cigarette advertising, and marketers are to rotate use of the images.
One label depicts a corpse with its chest sewn up and the words "Smoking can kill you." Another label shows a healthy pair of lungs beside a yellow and black pair with a warning that smoking causes fatal lung disease.
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-based Altria Group Inc., parent company of the nation's largest cigarette maker, Philip Morris USA, which makes top-selling Marlboros, is not a part of the lawsuit.
The free speech lawsuit is separate from a lawsuit by several of the same companies over the Family Smoking Prevention and Tobacco Control Act. That law, which took effect two years ago, cleared the way for the more graphic warning labels. But it also allowed the FDA to limit nicotine and banned tobacco companies from sponsoring athletic or social events or giving away free samples or branded merchandise.
A federal judge upheld many parts of the law, but the case is now pending before the U.S. 6th Circuit Court of Appeals in Cincinnati.
While the tobacco industry's latest legal challenge may not hold up, it could delay the new warning labels for years. And that is likely to save cigarette makers millions of dollars in lost sales and increased packaging costs.
Tobacco companies are increasingly relying on their packaging to build brand loyalty and grab consumers. It's one of few advertising levers left to them after the government curbed their presence in magazines, billboards and TV.
Michael Felberbaum can be reached at http://www.twitter.com/MLFelberbaum.