Cigarettes, Cancer and the Law

This in from The New York Times: “A federal judge on Monday blocked a Food and Drug Administration requirement that tobacco companies put big new graphic warning labels on cigarette packages by next September.”

Throughout Europe, a continent known for its aggressive smoking habits, repulsive photographs of cancerous wounds and sores are on many cigarette packages. But in the United States, the birthplace of the Surgeon General’s “warning label,” the same methods are under legal scrutiny.

The judge ruled that the labels were not factual and required the companies to use cigarette packages as billboards for what he described as the government’s “obvious anti-smoking agenda!”

The 29-page ruling was a setback for Congressional and F.D.A. efforts to bolster the warnings on tobacco packages. The agency has said they are the most significant change to health warnings in 25 years.

Calling the graphics fictional, the judge in the case made the following determination:

“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,” Judge Leon wrote.

Are these images really violating the doctrine of free speech, like shouting fire in a crowded theater when there is no smoke nor fire (which is against the law)? Or are they legitimate labels warning against dangerously acknowledged consequences of real toxic smoke?

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15 thoughts on “Cigarettes, Cancer and the Law

  1. Wendy

    In Canada, these warning labels have been around for some time, in fact the first country to apply them. You don’t see cigarette packages at all in the stores because they have to be locked up and not visable to consumers. I don’t think the graphic labels really stop people from smoking but the less people see tobacco brands… the less they are marketed to – the less likely they will start. I hope someday that it will be a thing of the past like cars without seatbelts.

  2. Doug

    I’m no smoker so I will never see one of these packs, but those directly affected will not be dissuaded. Maybe a better use would be Tony the obese tiger, or Captain Coronary Crunch on the boxes of corn syrup laced cardboard that is marketed to toddlers. ” yes, kids, you too can be a fat blob like me!”

  3. heidrun

    The FDA? They are those guys who don’t ever regulate factory farming or the overprocessed substances that are sold as food or companies like Monsanto or make any effect to relieve the increasing amount of “food deserts”. All the effects of those practices are known problems. Yeah, they are worried about public health. Riiight.

  4. h. robert greenbaum

    Meet us at the waterfall at Sloan Kettering when I accompany my best friend for her next six month chest scan after lung cancer surgery and we can discuss this further.   For cancer porn, the photo showing someone smoking a cigarette inserted into his tracheotomy tube, which I remember from an old medical textbook, takes the cake. 

  5. Linda

    Considering that tobacco was the leading cause of death as of a study done in 2000, it’s pretty obvious the surgeon general warnings have not thus far gotten through to the masses smoking their way to their graves. In numbers, that translates to 435,000 deaths or 18.1% of the US deaths in 2000 resulting from tobacco. I wonder what the larger number of people affected by those deaths would be – the families and dependents. Perhaps photos of the people affected by the deaths of smokers would strike a chord sooner than a photo of a black lung – a child who has lost her father.  Rather than capitulating to tobacco company complaints, let’s get creative and come up with some more effective warnings. The fact that smoking really does kill is not real enough to those using tobacco.
    On a related note. This debate is somewhat similar to the campaign that has been going spearheaded by the Physicians Committee for Responsible Medicine to get fast food restaurants in California to comply with a state law requiring proper warnings about carcinogens. PCRM has sued fast food chains to state clearly on their menus that their roast chicken products are carcinogenic i.e. potentially cancer causing (link below). It comes down to an issue of providing consumer warnings that are clear and can be understood. Something that moves beyond white noise.
    That said, I really wonder how many people would be deterred by a warning about cancer causing chicken. Would denial reign or would people just order the beef instead?

  6. Graeme

    I think it’s interesting that the USA persues with vigour, the dealers of drugs that arguable do less damage than tobacco, ie; mariuana, etc, while defending the right of corporations to deal drugs that cost individuls their health and is very addictive. It’s a strainge form of “democracy” that enforces the rights of corporations to make a profit over the rights of individuals to be preyed on.
    You may be aware of the Australian government’s moves to enforce plain packaging on tobacco packaging, graphic images have been enforced for a while. I don’t know whether it’s this or the increasing tax on tobacco, but the number of smokers has certainly declined here in th last 10 years or so. And that’s an obvious benefit to the individuals who have quit, and the government that pays for our universal health cover, which means every taxpayer benefits of course.
    Of course tha same idea can be applied to other legal drugs such as alcohol and ther have been suggestions to that effect here.
    Corporations that pollute can’t really be targeted effectively that way, but they can be herded towards social and environmetal responsibility by regulation and punative taxing. It has been shown to work with lead free petroll, sulfur reduced diesel, factory output water & air pollution, etc.

  7. Joe

    Perhaps liquor packages should show diseased livers, car accidents or those who end up in the gutter as a result of over drinking.  Why not blame the cigarette companies for lung cancer instead of air pollution? I once heard breathing NYC air is like smoking two packs of cigarettes per day. A billboard at the tunnels and bridges warning us about entering the city seems appropriate!

  8. Tony

    Perhaps “hijacked” was too strong of a word. I’m not arguing the merits of the tobacco industry and I agree that it is the duty of the FDA to protect us from all things harmful (for the sake of argument, we’ll ignore the topic of pharmaceuticals here). However, if the FDA wants to send out an emotive campaign message, they should do it using their own medium rather than force companies to give up space on packaged goods to do so. The FDA should send out it’s message in a PSA campaign like they have for decades past, and they’ll reach more people doing it. Remember the PSA ads for heroin addiction years ago? Absolutely frightening and still with me to this day – and I didn’t have to buy a bag of heroin to get the message.

  9. Joe

    Saying that a health protecton agency has “highjacked” packaging is like saying the city you live in highjacked your right to drink polluted water — instead of out of the convenient purrified tap water. Keeping you away from poluted water is essential for the health of everyone. Tobacco addiction is like a company selling a product that not only addicts you to that polluted water but endangers the rest of us with the secondary dangers as well as burdening society with its public health consequences and costs.
    Many years ago, there were companies that sold cocaine as a medicinal cure for ailments. One could go to the corner drug store and buy a Coca Cola. Thank God the FDA regulates dangerous and addictive drugs (when it is funded and not influenced). Tobacco only still exists because it has a history of human use before modern medicine, is addictive, and has a poweful visual rhetoric used by advertising and marketing experts to addict young people. If it was not addictive, the vast majority of all smokers would have quit by now.

  10. Tony

    I think the issue of free speech is perfectly viable if the FDA were using their own medium to send out a message. In this case, the FDA is forcibly hijacking packaging real estate to battle the very product within and I think the tobacco industry has every right to fight this. If I’m a magazine editor, do I have the right to alter advertisements running in my publication to suit my point of view?  

  11. Joe

    I think the rulling may in fact be a violation of the right to free speach. Specifically, if the creators of these images are independent and the images are bought by the FDA for distribution to tobaco manufacturers for use on warnings on packaging. That means that the cancer, etc. images are in and of themselves individual creative works. Placement does not change that fact.
    If the images are produced in house at the FDA (photographed by a paid FDA employee), than the judge might have some grounds for the ruling.
    It is, of course, all nonsense. It is the last gasp of an unessesary dying industry selling a dangerous addictive inhalent device.
    Also, why can’t we sue the tobacco industry out of existance for costing us all billions in health care and lost tax revenue and income due to the illness and deaths of the primary bread winners of a family?

  12. Anthony

    Judge Leon stated the new packaging represents an “objective wholly apart from disseminating purely factual and uncontroversial information.” He also called the images fictional. I’m confused as to where Judge Leon is drawing the line between fact and fiction.
    In my opinion, the proposed packaging conveys the right amount of information proportionate to how dangerous cigarette smoke really is. Am I splitting hairs? It’s not like we’re trying to decide when/if chewing gum is rude. Let’s try and be sensible, eh? 
    If people want to smoke, they still can. I don’t see anything wrong with a design that is trying to convey valuable, potentially life-saving information by means of a design meant to elicit an emotional response.
    With the way we argue over EVERYTHING in this country, clearly we are a very emotional people.
    Are we seriously afraid of “after this, what’s next?” in this case? Stop signs are big obtrusive and red because it is important they are seen. No one is complaining about those.

  13. Deb Budd

    Maybe the judge was a smoker?  It is pretty ripe, however, to ask an industry to graphically display the effects of their product on those who still choose to consume it. Anti-smoking advocates ned to find their own ad space, or keep lobbying the government to wear away at the tobacco industry’s continued manufacture of a product that can over time kill its users.  Regulating morality is never a fun job…

  14. Chris

    Having created and presented many advertising campaigns that were definitely controversial in nature, I can attest to the fact that people will do anything they can to influence another in order to satisfy their own self-serving interests. It is human nature (read: a manifestation of ego) to do this. The result can be both positive or negative, bringing about violence and war, or happiness and love.
    This incident seems to demonstrate where we draw the line on how much influence we are permitted to exert upon another in the context of government regulation, and indeed, that line is often very wide and very gray. Certainly, the effects of smoking, or any other activity resulting in death, will create uncontrollable fear and the evolution of organizations with the purpose of eliminating it.
    Since I plan to live forever, this does not affect me (just kidding). Perhaps some day our society will become totally regulated, and we will revert to a form of generic no-name branding, which would be a shame. The joy of life exists in the diverse nature of our experience, from beginning to end, good and bad.
    I must note that I was taken off some of the accounts to which I presented the aforementioned controversial advertising campaigns, and I was quite pleased about it. There is a difference between doing what needs to be done and being prompted to go too far.