WASHINGTON — The federal government fought an uphill battle Wednesday to convince a skeptical judge that tobacco companies should be required to put large graphic photos on cigarette packs to show that the habit kills smokers and their babies.
Cigarette makers told U.S. District Judge Richard Leon at a hearing that they can't be forced to spread the government's anti-smoking advocacy with "massive, shocking, gruesome warnings" on products they legally sell. Attorneys for the Obama administration countered that the photos of dead and diseased smokers it wants on all cigarette packs are "factually uncontroverted."
Leon has already ruled that the cigarette makers are likely to succeed in their lawsuit to stop the requirement, which was supposed to go into effect next year. Leon blocked the rule from taking effect until after the lawsuit is resolved.
Leon found in his earlier ruling that 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.
Leon also ruled 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.
The judge showed no sign that he was changing his position in favor of the government after the hour-long hearing Wednesday. "It sounds like they are headed to a place where you have to watch a 10-minute video before you can even buy a pack of cigarettes," he said.
The packaging the government wanted to require 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"
The Obama administration has appealed Leon's preliminary injunction stopping the rule from taking effect. The U.S. Court of Appeals for the District of Columbia is scheduled to hear the case April 10.
Attorney Mark Stern, representing the government, told Leon they don't expect he'll change his mind after siding so strongly with the tobacco companies in his initial ruling. But he said the government disagrees and argued the images factually show what can happen to smokers. "This will kill you," Stern said. "This will kill your baby."
Tobacco lawyer Noel Francisco said the government is free to try to tell Americans how to live their lives, but not to require cigarette manufacturers "to serve as the government's unwilling spokesman in that paternalistic endeavor."
Congress instructed the FDA to require the labels by a wide bipartisan majority, following the lead of the Canadian regulations that require similarly graphic images on cigarette packs. But Leon said Wednesday "there's just nothing — nothing — on the record" to indicate lawmakers consider the First Amendment implications of compelling commercial speech.
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.