Smoking is bad for you. It causes a litany of health problems, including cancer, lung and heart disease. Pregnant women who smoke can harm their unborn child. Smoking is addictive.
We know these things because we have been told over and over. Anti-smoking groups run campaigns to discourage kids from starting to smoke and to try to get people to stop. Cigarette companies must include health warnings on each pack.
But should cigarette makers be forced to do even more to prevent people from buying their product?
The federal government says they should, and the Food and Drug Administration last year approved new rules requiring 50 percent of the front and back panels of every cigarette pack to include graphic images. Those images include diseased lungs next to a healthy set, a man exhaling cigarette smoke through a tracheotomy hole in his throat and a bare-chested male cadaver with what appear to be autopsy chest staples.
“Somebody said when they first saw the warning, these are really gross, and they are,” said Health and Human Services Secretary Kathleen Sebelius. “We want kids to understand smoking is gross, not cool.”
Five tobacco companies that object to the graphic warnings have sued, claiming they are unconstitutional. The government disagrees and today the case will be argued before a three-judge panel of the U.S. Circuit Court of Appeals in Washington, D.C.
At issue will be the intent of the messages. The courts have found that the government can compel certain kinds of commercial speech to protect consumers. That speech must be “purely factual and uncontroversial information” that is not “unjustly or unduly burdensome.”
For example, the government can require cigarette makers to include a warning in ads and on packaging that smoking can kill you. And the government can make the manufacturers of alcohol include a warning that drinking “impairs your ability to drive a car or operate machinery, and may cause health problems.”
But the government may be crossing a line when the warning is designed to elicit an emotional response, rather than simply disseminate information.
Last month, U.S. District Court Judge Richard Leon ruled the graphic images depicting the negative effects of smoking that tobacco companies would be forced to post on their products were unconstitutional. The judge found their purpose is “not to inform, but rather to advocate a change in consumer behavior.”
Judge Leon added that if the grisly tobacco warnings stand, what’s next? “One can only wonder what the Congress and the FDA might conjure up for fast food packages and alcohol containers.” Could the FDA require a liquor distiller to include a picture of a wrecked car on the label? Would fast food restaurant packaging have to show an actual picture of someone who is morbidly obese?
The smoking rate, after dropping steadily for years, has now leveled out at about 20 percent of all Americans. Government health officials hope these new explicit warnings will re-energize the “stop smoking” effort, thus saving lives and money.
That may happen, but not even the FDA can predict a statistically significant drop in smoking because of the warnings, regardless of their shock value. Meanwhile, if the graphic warnings stand, smokers will find themselves stigmatized even more for engaging in what is an otherwise legal activity.