An appeals court has upheld a decision barring the US government from requiring tobacco companies to put large graphic health warnings on cigarette packages, saying the government cannot scare smokers into quitting.

The US Court of Appeals in Washington affirmed a lower court ruling that the requirement ran afoul of the US Constitution’s free speech protections.

Some of the nation’s largest tobacco companies sued to block the Food and Drug Administration mandate to include warnings to show the dangers of smoking. They argued that the proposed warnings went beyond factual information into anti-smoking advocacy.

The government argued the photos of dead and diseased smokers are factual in conveying the dangers of tobacco, responsible for about 443,000 deaths in the US a year.

The nine graphic warnings proposed by the FDA include colour images of a man exhaling cigarette smoke through a tracheotomy hole in his throat, and a plume of cigarette smoke enveloping an infant receiving a mother’s kiss. These are accompanied by language that says smoking causes cancer and can harm fetuses. The warnings were to cover the entire top half of cigarette packs, front and back.

In recent years, more than 40 countries or jurisdictions have introduced labels similar to those created by the FDA. The World Health Organisation said in a survey done in countries with graphic labels that a majority of smokers noticed the warnings and more than 25 per cent said the warnings led them to consider quitting.

Tobacco companies increasingly rely on their packaging to build brand loyalty and grab consumers – one of the few advertising levers left to them after the government curbed their presence in magazines, billboards and TV.

The FDA declined to comment on pending litigation, and the Justice Department said it would review the appeals court ruling. Public health groups are urging the government to appeal.

Warning labels first appeared on US cigarette packs in 1965, and current warning labels that feature a small box with text were put on cigarette packs in the mid-1980s. Changes to more graphic warning labels that feature colour images of the negative effects of tobacco use were mandated in a law passed in 2009 that, for the first time, gave the federal government authority to regulate tobacco.

The share of Americans who smoke has fallen dramatically since 1970, from nearly 40 per cent to about 20 per cent. But the rate has stalled since about 2004, with about 46 million adults in the US smoking cigarettes. Some experts have cited tobacco company discount coupons on cigarettes and lack of funding for programs to discourage smoking or to help smokers quit.

 

 

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