Today a
federal appeals court
upheld the new cigarette warning labels that a federal judge in
another circuit
deemed unconstitutional last month. The U.S. Court of Appeals
for the 6th Circuit said the warnings, which feature icky color
pictures and would cover half of each pack’s front and back panels,
were justifiable as a way of preventing consumers from being misled
by tobacco promotion. Judge Eric Clay, who wrote the rest of the
ruling, dissented on that point. “Although the government has
demonstrated that an information deficit still exists among
potential tobacco consumers, which may render warning-less tobacco
products inherently deceptive,” he wrote, “it has not adequately
shown that the inclusion of color graphic warning labels is a
properly or reasonably tailored response to address that harm.”

The 6th Circuit also upheld the restrictions on information
about the relative risks of tobacco products that were included in
the Family Smoking Prevention and Tobacco Control Act, the same law
that mandated the new warning labels. “Contrary to Plaintiffs’
assertions,” the court said, “the interest that the government
seeks to advance through the MRTPR [modified risk tobacco product
rule] is not the risk that the public will become overly
informed regarding the relative risks of various tobacco products,
but instead the risk that the tobacco industry will make fraudulent
claims regarding the relative health benefits of the products that
it markets.” That gloss is misleading, since the law
authorizes the Food and Drug Administration (FDA) to suppress
even truthful information about a “modified risk” product (such as
smokeless tobacco and electronic cigarettes) if it decides such
censorship is necessary to protect public health.

Under the law, the FDA is supposed to approve the marketing of a
modified-risk product only if it concludes that doing so will
“benefit the health of the population as a whole taking into
account both users of tobacco products and persons who do not
currently use tobacco products.” For example, the FDA can
forbid risk comparisons between cigarettes and smokeless tobacco if
it worries, no matter how improbably, that the health benefits
enjoyed by smokers who switch to snus (Swedish-style oral snuff)
would be outweighed by the health costs to nonsmokers who are
attracted to snus by the knowledge that it is much less dangerous
than cigarettes. These regulations are not just about preventing
fraud; they are also about serving the FDA’s conception of public
health, which may mean overriding
the interests of individual consumers.

By contrast, the 6th Circuit overturned the tobacco control
act’s ban on the use of color or pictures in outdoor ads,
indoor ads (except those in adult-only businesses), and
print ads carried by publications with significant underage
readerships. “Although the government can show a substantial
interest in alleviating the effects of tobacco advertising on
juvenile consumers,” the court said, “the provision of the Act
banning the useof color and graphics in tobacco advertising is
vastly overbroad.”

The 6th Circuit’s decision is here
(PDF). I discussed U.S.
District Judge Richard Leon’s injunction against the new warning
labels earlier this month. After Congress approved the tobacco
ad restrictions in 2009, I predicted they
would be overturned on First Amendment grounds.