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Judge blocks graphic images on cigarette packages

In this combo made from file images provided by the U.S. Food and Drug Administration shows two of nine new warning labels cigarette makers will have to use by the fall of 2012. A judge on Monday blocked a federal requirement that would have begun forcing tobacco companies next year to put graphic images on their cigarette packages to show the dangers of smoking.. In this combo made from file images provided by the U.S. Food and Drug Administration shows two of nine new warning labels cigarette makers will have to use by the fall of 2012. A judge on Monday blocked a federal requirement that would have begun forcing tobacco companies next year to put graphic images on their cigarette packages to show the dangers of smoking.. (AP Photo/U.S. Food and Drug Administration, File)
By Nedra Pickler
Associated Press / November 7, 2011

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WASHINGTON—A judge on Monday blocked a federal requirement that would have begun forcing tobacco companies next year to put graphic images including dead and diseased smokers on their cigarette packages.

U.S. District Judge Richard Leon ruled that it's likely the cigarette makers will succeed in a lawsuit to block the new standard. He stopped the requirement until after the lawsuit is resolved, which could take years.

A similar case brought by the tobacco companies against the labels is pending before the U.S. 6th Circuit Court of Appeals in Cincinnati. U.S. District Judge Joseph McKinley upheld most of the marketing restrictions in the law in January 2010. The appeals court heard arguments in the case in July but is not expected to rule for several months.

Leon found the nine graphic images approved by the Food and Drug Administration in June go beyond conveying the facts about the health risks of smoking or go beyond that into advocacy -- a critical distinction in a case over free speech.

The packaging would have included color images of a man exhaling cigarette smoke through a tracheotomy hole in his throat; a plume of cigarette smoke enveloping an infant receiving a mother's kiss; a pair of diseased lungs next to a pair of healthy lungs; a diseased mouth afflicted with what appears to be cancerous lesions; a man breathing into an oxygen mask; a cadaver on a table with post-autopsy chest staples; a woman weeping; a premature baby in an incubator; and a man wearing a T-shirt that features a "No Smoking" symbol and the words "I Quit"

"It is abundantly clear from viewing these images that the emotional response they were crafted to induce is calculated to provoke the viewer to quit, or never to start smoking -- an objective wholly apart from disseminating purely factual and uncontroversial information," Leon wrote in his 29-page opinion. He pointed out that at least some were altered photographs to evoke emotion.

The judge also pointed out the size of the labels suggests they are unconstitutional -- the FDA requirement said the labels were to cover the entire top half of cigarette packs, front and back and include a number for a stop-smoking hotline. The labels were to constitute 20 percent of cigarette advertising, and marketers were to rotate use of the images. Leon said the labels would amount to a "mini-billboard" for the agency's "obvious anti-smoking agenda."

The Justice Department argued that the images, coupled with written warnings, were designed to communicate the dangers to youngsters and adults. The FDA declined to comment on the judge's ruling, and a spokesman for the Justice Department would not say whether it plans to appeal, only that it is reviewing the ruling.

Matthew Myers, president of the Campaign for Tobacco-Free Kids, urged the Obama administration to appeal the ruling that he said "is wrong on the science and wrong on the law." He said a delay would only serve the financial interests of tobacco companies that spend billions to downplay the health risks of smoking and glamorize tobacco use.

"Studies around the world and evidence presented to the FDA have repeatedly shown that large, graphic warnings, like those adopted by the FDA, are most effective at informing consumers about the health risks of smoking, discouraging children and other nonsmokers from starting to smoke, and motivating smokers to quit," Myers said in a statement. "Because of that evidence, at least 43 other countries now require large, graphic cigarette warnings."

Congress instructed the FDA to require the labels, following the lead of the Canadian regulations that require similarly graphic images on cigarette packs. Lawmakers approved the measure with wide bipartisan majorities, and supporter Sen. Frank Lautenberg, D-N.J., also urged appeal. "Big Tobacco will stop at nothing to keep the cold, hard facts off their cigarette packages," he said in a statement.

The cigarette makers say their products have had Surgeon General warnings for more than 45 years, but that they never filed a legal challenge against them until these images were approved.

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, and the graphic labels could cost them millions in lost sales and increased packaging costs.

The cigarette makers that sued the FDA are R.J. Reynolds Tobacco Co. of Winston-Salem, N.C., Lorillard Tobacco Co. of Greensboro, N.C., Commonwealth Brands Inc. of Bowling Green, Ky., Liggett Group of Mebane, N.C., and Santa Fe Natural Tobacco Co. of Santa Fe, N.M.

"Today's ruling reaffirms fundamental First Amendment principles by rejecting the notion that the government may require those who sell lawful products to adults to urge current and prospective purchasers not to purchase those products," Lorillard attorney Floyd Abrams said in a statement.

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AP Tobacco Writer Michael Felberbaum in Richmond, Va., contributed to this report.