Writing for the majority, Judge Janice Rogers Brown wrote, “This case raises novel questions about the scope of the government’s authority to force the manufacturer of a product to go beyond making purely factual and accurate commercial disclosures and undermine its own economic interest — in this case, by making ‘every single pack of cigarettes in the country mini billboard’ for the government’s anti-smoking message.”
The appeals court also held that the FDA had failed to provide even a “shred of evidence” showing graphic labels reduce smoking.
Matthew Myers, president of The Campaign for Tobacco-Free Kids issued a statement saying “Today’s ruling is wrong on the science and law, and it is by no means the final word on the new cigarette warnings.”
Dissenting judge Judith Rogers held the FDA warnings were factual and necessary to counter deceptive advertising by tobacco companies. In her dissent, Judge Rodgers wrote, “The government has an interest of paramount importance in effectively conveying information about the health risks of smoking to adolescent would-be smokers and other consumers.”
The ruling also creates a favorable situation for tobacco companies in that, with respect to conflicting opinions of different appeals courts, they can avoid obeying the FDA rule until the Supreme Court decides to step in. That event, of course, is difficult to envisage before the November elections are over and done with.
Most developed and developing countries in the world already carry graphic images on cigarette packs to illustrate the risks of smoking. This year, Australia took an extra step and banned company logos on cigarette packs. The European Union is also considering such a ban, while already, most countries in EU carry graphic images illustrating risks of smoking.