WASHINGTON -- Five tobacco companies have filed suit against the U.S. government claiming that government-ordered graphic warning labels on cigarette packs violate their First Amendment rights.
Starting on Sept. 22, 2012, cigarettes sold in the U.S. will have to carry warning of the dangers of smoking. These images include a tracheotomy hole, rotting teeth, diseased lungs, and a body on an autopsy table.
The images will be accompanied by dissuasive wording on cigarettes and smoking, including "cigarettes are addictive," "cigarettes cause cancer," and "smoking can kill you." They must be displayed on at least half of the front and back of cigarette packs, and 20% of the top of the pack.
The lawsuit was filed by four of the nation's largest tobacco companies -- including R.J. Reynolds Tobacco and Lorillard, and one smaller company (Sante Fe Natural Tobacco Company) -- against the FDA and the Department of Health and Human Services.
The companies are seeking to prevent enforcement of the images, arguing that the government cannot legally force them to espouse an anti-smoking advocacy message.
"This is precisely the type of forced speech the First Amendment prohibits," the lawsuit said, which was filed Tuesday in U.S. District Court of the District of Columbia.
The government can require that tobacco companies' products carry "purely factual and uncontroversial" information about cigarettes, but the FDA is overstepping its bounds by requiring companies to advertise against the very product they are trying to legally sell, the lawsuit said.
"The regulations violate the First Amendment," Floyd Abrams, a partner in the New York law firm of Cahill Gordon & Reindel, who is representing Lorillard said in a statement.
"The notion that the government can require those who manufacture a lawful product to emblazon half of its package with pictures and words admittedly drafted to persuade the public not to purchase that product cannot withstand constitutional scrutiny," he said.
The lawsuit points to a U.S. Supreme Court decision that ruled the state cannot compel citizens to use their private property as a "mobile billboard" for the state's message, and that is exactly what the FDA is doing by requiring tobacco companies to advertise the government's anti-smoking stance, the companies argue.
In fact, FDA Commissioner Margaret Hamburg, MD, has said the images and and warnings act as "a mini-billboard that tells the truth about smoking."
An FDA spokesperson said the agency "does not comment on proposed, pending, or ongoing litigation."
Notably absent from the lawsuit: Tobacco giant Philip Morris, makers of Marlboro brand cigarettes. The industry leader distanced itself from its competitors by publicly backing the legislation that gave the FDA regulatory control of tobacco products.
The American Cancer Society's Action Network (ACS CAN) blasted the tobacco companies for filing the lawsuit, which they said continues "their campaign of public deception."
"Big Tobacco has shown that it is business as usual for an industry that will do anything to continue to promote its deadly and addictive products," said John R. Seffrin, PhD, chief executive officer of the ACS CAN in a statement "The days of unfettered access to consumers, peddling products that have been proven to kill, are a thing of the past."
A recent study from the Centers for Disease Control and Prevention (CDC) found that graphic health warnings on cigarette packs caused one-quarter of smokers to consider quitting in 13 of the 14 foreign countries surveyed. The researchers determined that adding the graphic warnings to cigarettes as part of a comprehensive quit-smoking push could save lives by reducing global smoking rates.