Home » News » Requiring ugly images of smoking’s harm on cigarettes won’t breach First Amendment, court says

By Kevin McGill, The Associated Press, published on March 22, 2024

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This image provided by the U.S. Food and Drug Administration on Aug. 15, 2019, shows proposed cigarette warning labels. FDA via AP, file

NEW ORLEANS (AP) — A federal requirement that cigarette packs and advertising include graphic images demonstrating the effects of smoking — including pictures of smoke-damaged lungs and feet blackened by diminished blood flow — does not violate the First Amendment, an appeals court ruled March 21.

The ruling from a three-judge panel of the 5th U.S. Circuit Court of Appeals was a partial victory for federal regulators seeking to toughen warning labels. But the court kept alive a tobacco-industry challenge of the rule, saying a lower court should review whether it was adopted in accordance with the federal Administrative Procedure Act, which governs the development of regulations.

(Government concern with tobacco advertising is not new. In 1998, several states reached a settlement with tobacco companies in a case partly concerned false advertising, including not warning consumers about the health effects of their products.)

In this case, the 5th Circuit panel rejected tobacco-industry arguments that the rule toughening warning labels violates free-speech rights or that the rule requires images and lettering that take up so much space that they overcome branding and messaging on packages and advertisements.

The appeals court ruling overturns a lower court order from a federal district court in Texas, where a judge found the requirements violated the First Amendment.

“We disagree,” Judge Jerry Smith wrote for the 5th Circuit panel. “The warnings are both factual and uncontroversial.”

While reversing the lower court’s First Amendment finding, the panel noted that the judge had not ruled on the administrative procedure-based challenge. It sent the case back to the district court to consider that issue.

The images in question include a picture of a woman with a large growth on her neck and the caption “WARNING: Smoking causes head and neck cancer.” Another shows a man’s chest with a long scar from surgery and a different warning: “Smoking can cause heart disease and strokes by clogging arteries.”

Nearly 120 countries around the world have adopted larger, graphic warning labels on tobacco products. Studies from those countries suggest the image-based labels are more effective than text warnings at publicizing smoking risks and encouraging smokers to quit.

In addition to Smith, who was nominated to the court by former President Ronald Reagan, the panel included judges Jennifer Walker Elrod, nominated by George W. Bush, and James Graves, nominated by Barack Obama.

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