Two advertising industry groups on Friday joined some of the nation's largest tobacco companies in opposing new graphic cigarette warning labels that include the sewn-up corpse of a smoker and pictures of diseased lungs.
The groups say the labels infringe on commercial speech and could lead to further government intrusion if unchallenged.
The Association of National Advertisers and the American Advertising Federation on Friday filed briefs with the U.S. District Court in Washington, D.C., in a lawsuit led by R.J. Reynolds Tobacco Co. and Lorillard Tobacco Co.
The companies sued the Food and Drug Administration last month to block the labels, saying they violate free speech laws, unfairly urge adults to shun their legal products and will cost millions to produce.
A hearing on a preliminary injunction to stop the labels, set to appear on packs next year, is set for Sept. 21, with a decision to come as soon as October.
"The new cigarette warnings are expressly designed to be propagandistic rather than informative," wrote the groups who represent hundreds of U.S. companies and thousands of advertising professionals. "If the government can deputize tobacco companies through their product packaging and advertisements to deliver its message, there is no reason it could not do so for other things _ and history shows it will not hesitate to do so."
Tobacco companies are increasingly relying on their packaging to build brand loyalty and grab consumers. It's one of few advertising levers left to pull since the government has curbed their presence in magazines, billboards and TV.
In opposition to the lawsuit, the FDA said last week that the public interest in conveying the dangers of smoking outweighs the companies' free speech rights. And it said the cost to the companies to incorporate the new graphics is not sufficient to halt the labels.
The federal agency also argued that Congress gave it the authority to require the new labels because existing warnings dating to 1984 were going unnoticed. It says it drew on the advice of various experts to create the labels, which the FDA said are similar to those used in other countries, including Canada.
The companies on Friday responded that while the government has authority to mandate them to accurately warn consumers about the dangers of their products plainly and legibly, it "lacks authority to compel manufacturers to replace their product labels and logos with emotionally-charged photographs and messages demanding that adult customers stop using their lawful products."
In June, the FDA 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, 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 shows a healthy pair of lungs beside a yellow and black pair with a warning that smoking causes fatal lung disease.
Joining R.J. Reynolds and Lorillard in the suit are Commonwealth Brands Inc., Liggett Group LLC and Santa Fe Natural Tobacco Company Inc.
Altria Group Inc., parent company of the nation's largest cigarette maker, Marlboro maker Philip Morris USA, is not a part of the lawsuit.
The tobacco industry's legal challenge could delay the new warning labels for years. That is likely to save cigarette makers millions of dollars in lost sales and increased packaging costs.
Michael Felberbaum can be reached at http://www.twitter.com/MLFelberbaum.