One of nine new warning labels cigarette makers will have to use by the fall… (U.S. Food and Drug Administration )
There are some blatantly good and bad guys in the story of cigarettes. The bad guys are the companies that misled the public for years about the dangers of smoking. The good guys are the anti-smoking advocates and the governments that have slapped restrictions on smoking and that seek to put the horrifying truth in front of people who would otherwise light up.
Yet sometimes the bad guys are right — if still bad — and when it comes to the large graphic warnings that the U.S. Food and Drug Administration wants to require on packs of cigarettes, tobacco companies have a valid argument. The various companies that sued to prevent the warnings won an important round in court Monday when U.S. District Judge Richard Leon granted a preliminary injunction against the pictures of diseased lungs and post-autopsy corpses. He said they constituted anti-tobacco advocacy rather than a straightforward informational warning, and as a result could violate the companies' 1st Amendment rights.
The government can and does require the makers of various products to include consumer safety warnings. Cigarettes must include the surgeon general's warning. Pharmaceutical companies, when they advertise prescription drugs, must include lengthy listings of potential side effects. Toy makers add warnings if their products contain parts that could choke young children. But drug companies don't have to emblazon their packaging with pictures of hideous rashes; toys don't come with repulsive illustrations of toddlers choking. On the other hand, toys are not the primary cause of premature death in the U.S. Smoking is.
Though we like the idea of warnings that might repel potential smokers, we've been concerned from the start about forcing one particular industry to advertise against its own product — a product that is perfectly legal to produce and sell.
Of course, this is a tricky line to draw. Warnings in the form of images aren't really all that different from written warnings. If it's fine to require a pack of cigarettes to say "Smoking can cause lung cancer," theoretically it should be allowable to say that along with a photo of diseased lungs.
So when do warnings cease to be informational and become the government's anti-product advertisement? When they push for emotional appeal, rather than providing basic facts that allow consumers to make informed decisions. The judge in the cigarette case indicated that it's something you know when you see it, and in this case we agree. The graphic warnings are designed to evoke disgust rather than merely inform. That makes them a tool of advocacy, though it probably also makes them more effective.