U.S. appeals court rejects graphic anti-smoking warnings

WASHINGTON — A U.S. appeals court has struck down the government’s plan to require graphic warnings on cigarette packs, ruling that the shocking images seek to “browbeat consumers into quitting” smoking and violate the free-speech rights of the tobacco companies.

One of the nine proposed images shows a man exhaling cigarette smoke through a surgical hole in his throat, evoking the dangers of smoking and the addictive power of nicotine. Other images show diseased lungs, dead bodies and a baby enveloped in a plume of smoke.

Judge Janice Rogers Brown said the government can require cigarette companies to carry printed warning labels, but it cannot go further to mandate an “ideological” and “emotional” attack on smoking.

The graphic images “are unabashed attempts to evoke emotion and … shock the viewer,” she said in a 2-1 decision by the U.S. Court of Appeals for the District of Columbia.

“We are skeptical that the government can assert a substantial interest in discouraging consumers from purchasing a lawful product, even one that has been conclusively linked to adverse health consequences,” she wrote.

Government lawyers said cigarette smoking “kills more than 400,000 Americans every year — more deaths than AIDS, alcohol, car accidents, murders, suicides, drugs and fires.”

A separate federal appeals court in Ohio has upheld the new warnings, and Friday’s ruling sets the stage for a Supreme Court hearing, probably next year. The justices nearly always hear a case when a major federal regulation has been declared unconstitutional.

For more than 40 years, the government has required cigarette makers to carry printed warnings on the dangers of smoking. Three years ago, Congress told the Food and Drug Administration to go further and require “color graphics” that depict the consequences of smoking.

But the regulations, which were challenged by tobacco companies, have now been blocked by conservative judges. Brown, a former California Supreme Court justice and a George W. Bush appointee, said the graphic warnings would “make every single pack of cigarettes in the country a mini-billboard for the government’s anti-smoking message.”

The judge also questioned whether the images would be effective. “The FDA has not produced a shred of evidence … showing that the graphic warnings will … reduce the number of Americans who smoke,” she wrote.

Her opinion is consistent with a trend in which the 1st Amendment has been invoked to block business regulations.

Last year, the Supreme Court struck down a California law that limited the sale of violent video games to minors and a Vermont law that barred drugstores from selling their patients’ prescription records to marketers. In both instances, the justices said the laws violated the free-speech rights of the companies.

Friday’s ruling was the second this week from the federal appeals court here that blocked a major regulation backed by the Obama administration.

In an environmental ruling, also by a 2-1 vote, the court killed a new clean-air rule that sought to curb cross-state air pollution from coal-burning plants. In both cases, Republican appointees formed the majority, while a Democratic appointee dissented.

david.savage@latimes.com