The government wants buying cigarettes to make you sick. Not smoking them. Buying them.
The Food and Drug Administration has ordered tobacco companies to cover cigarette packages with graphic images of the health effects of smoking. The pictures are truly gruesome. They include depictions of diseased lungs, a man with an oxygen mask, and a corpse. (Click here to see the images.)
A group of tobacco companies sued the FDA to block the rule, which is scheduled to take effect next September. They claim it violates their first amendment right to free speech.
Earlier this week, the judge in the case agreed and blocked implementation of the rule. (Click here to read the opinion.) He said the pictures appeal to emotions and constitute anti-smoking advocacy rather than neutral factual information. He found that the rule amounts to government expropriation of private companies' advertising space to promote a position.
But the emotional appeal of the pictures is the whole point. Cigarette packages have displayed health warnings since 1964 with minimal effect in discouraging smoking. Most people know that cigarettes can hurt them. However, they don't feel the threat in an immediate way.
Cigarettes are not like most other products. When used as intended, there is a good chance they will kill you. And the nicotine in them is highly addictive, so quitting is not a matter of simple choice.
The job of the FDA is to protect the public from dangerous foods and drugs. It needs powerful tools when dealing with a drug that is addictive and lethal. If it can warn you of its dangers with words, then warning you with images should not be off-limits. Congress ordered the FDA to require such graphic warnings in 2009 when it passed the Family Smoking Prevention and Tobacco Control Act, which passed with wide bipartisan majorities.
Graphic cigarette warnings are required in several foreign countries, including Canada. Anti-smoking advocates believe that they effectively discourage smoking. My colleague Jonathan Purtle, blogging today on The Public's Health, cites the admittedly limited research findings that support that argument so far.
The government "advocacy" involved is to deter people from slowly killing themselves. This hardly seems like the kind of controversial stance the first amendment was intended to keep the government away from. Promoting the general welfare is one of the main reasons that our government exists, according to the Constitution. Protecting health is a key part of promoting welfare.
Tobacco companies are concerned that graphic images will cut into sales. Of course they will. If you want to sell a product that you know will kill your customers you should expect to have to put up with some restrictions.
The decision blocking the FDA rule is likely to be appealed. It conflicts with an earlier decision by a federal court in Kentucky. The issue may ultimately be decided by the Supreme Court.
To be sure, whenever the government tries to compel anything, a delicate balance is at work. Infringements on liberty require good cause. But mandating effective warnings on a product that is certain to kill millions of its users seems like a cause that is pretty solid.
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