For cigarette makers, limits to free speech

By Arthur L. Caplan

and Zachary D. Caplan

Butt out is the message from four of the five largest cigarette manufacturers who have filed suit in a Washington, D.C., federal court challenging new FDA regulations that require them to print nine graphic images on their cigarette packaging.

Under the FDA rule, the images must be printed in color and displayed on the top 50 percent of the both the front and back panels of every pack. Grim news has to cover the top 20 percent of all printed cigarette advertising. In addition, the FDA says, every pack of cigarettes must contain the words "QUIT-NOW." And there is an 800 quit smoking hotline number that has to be there too.

It takes a lot for an industry that has been trying to fend off further FDA regulation if not outright prohibition to tangle with a tough public health campaign. But, led by the famous First Amendment litigator Floyd Abrams, the tobacco industry has decided to risk the wrath of the FDA and the antismoking lobby. With this suit they are crying "no mas" to any depictions of people smoking through their throats, wearing oxygen masks, holes in their lips, corpses, choking babies, rotting teeth, and blackened lungs gracing their packaging.

With smokers confined to tiny claustrophobic huts in airports, cigarettes being taxed into the stratosphere, and cities banning smoking indoors and outdoors, can Big Tobacco possibly have a case? Legally - maybe. Ethically - no.

For many years courts have upheld mandated warnings on consumer products for consumer protection and safety. However, the tobacco companies argue in their free-speech suit that the new FDA warnings are "unprecedented." They are being required to tell the customers of a legal product not to buy it, using some pretty yucky imagery and a plea to call someone who will urge them to stop.

The tobacco companies lost (and promptly appealed) a similar lawsuit in a Bowling Green, Ky., federal court last year. The difference this year is that the new suit specifically challenges the validity of the regulations that led the FDA to select the nine graphic warning labels they say have to be there, as well as the legitimacy of telling people not to buy something they are allowed to buy.

Ethically, the tobacco companies don't have a case.

The damage done by smoking is beyond dispute, even by the tobacco companies that are so ashamed of what they sell that they have merged and renamed themselves to make it less obvious that they profit by promoting cancer and emphysema. Graphic warnings on cigarettes appear to have worked in Canada and other countries. If you see these images you would have to be completely addicted to lay out your 10 or more bucks so that you can die faster. Using a free-speech rationale to prevent vigorous efforts to save lives and reduce the burden of chronic disease almost guarantees that that the nicotine industry will look even worse than it already does.

Sometimes what may be legal is not ethical. This is one of those times.