The Costs of a Not So Pretty Picture: Tobacco Companies are Displeased with the FDA’s New Cigarette Labeling Regulations

As of September 2012, tobacco companies in the United States will need to make some pretty expensive and undesired changes to the packages and advertisements of their products. As per the new Food and Drug Administration (FDA) regulations, tobacco companies will be required to modify the packaging of their cigarette products to include 1 of 9 horrifyingly vivid images along with a caption demoting smoking. The images and textual warnings are the result of efforts made by The Family Smoking Prevention and Tobacco Control Act (Tobacco Control Act) which was signed into law by President Obama in 2009. The goal: to make tobacco-related death and disease part of the nation’s past, and not our future.

The pictures, which can be found on the FDA’s website, include a mouth with an open soar and rotten teeth, a dead man with his body sewn up, and a man with a hole in his neck. The text warnings alert readers to cautions such as, “Tobacco smoke can harm your children” and “Cigarettes cause fatal lung disease.” The new cigarette health warnings will cover the top 50% of both the front and back of each cigarette package and occupy at least 20% of the upper portion of each cigarette advertisement.

A requirement now mandated under the Tobacco Control Act, a bipartisan law passed by Congress in June 2009, leaves tobacco companies without a choice in the matter. That does not mean however, that they are taking this decision lying down. The FDA reported that letters received both from R.J. Reynolds and Phillip Morris USA, the two largest tobacco companies in the U.S. expressed their beliefs that the new requirements violate their First and Fifth Amendment rights and are thus unconstitutional. They argued that forcing tobacco companies to stigmatize their own product, and in such an imposing size violates their constitutional rights. In response, the FDA points to case law and highlights that the images and warnings convey information about the effects of smoking that is factual and uncontroversial and thus subject to a more lenient standard of review. Citing to the court in Commonwealth Brands v. United States, the FDA calls attention to the district court’s opinion that, “the government’s goal is not to stigmatize the use of tobacco products on the industry’s dime; it is to ensure that the health risk message is actually seen by consumers in the first instance.”

The United States is joining the more than 30 countries including our Canadian neighbor who have already implemented this regulation, marking the first change in cigarette warnings in the U.S. in over 25 years. According to the Centers for Disease Control and Prevention, tobacco use is the leading cause of premature and preventable death in the United States, responsible for 443,000 deaths each year and causing 8 million to live with a smoking-related disease. This is coupled with the nearly $200 billion annual price tag to our economy in medical costs and lost productivity. Although this new regulation may be causing tobacco gurus to dig deep into their pockets, with figures like those mentioned above, it’s costing the American government and its people a much more unforgivable expense.

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