Content warning: some of the images in this blog are gross. If you’re squeamish, don’t read.

The United States has required cigarette packages to display warning labels since the 1960s. The first warning label stated simply, “Cigarette Smoking May Be Hazardous to Your Health.” In 1984, Congress passed the Comprehensive Smoking Education Act requiring tobacco companies to display on every cigarette package four periodically-rotating health warnings.  

As other countries adopted more aggressive warning labels to combat smoking, the United States’ regulatory structure went unchanged for twenty-five years.

How aggressive are other countries’ labeling requirements?

Take a look for yourself, below are the images that are required on every pack of cigarettes in Brazil.

WARNING GROSS IMAGES BELOW

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DO GRAPHIC IMAGES ON CIGARETTES WORK?

There have been a multitude of studies that show pictoral warnings on cigarette packaging likely encourage smoking cessation or prevent new smokers from picking up a cigarette. This kind of states the obvious, I mean, after seeing a guy with his head chopped open and his brain exposed does your desire to smoke increase?

Different countries have experimented with different presentations of warning labels to try and find which ones are the most effective. Studies have found that warning labels are most effective at communicating the health risks of tobacco use when they contain both pictures and words and are large and in color. Warning labels also must be rotated periodically to avoid over exposure, which is a federal regulation in the USA. If you’re a smoker, you may notice the warning labels jump around on the pack every now and then.

The World Health Organization recommends that cigarette packs include pictures on labels, and it provides guidance to regulatory agencies that develop and design warning labels for cigarettes. More than 100 countries and jurisdictions require pictorial warnings.

In Canada, the label warns that:

CIGARETTES CAUSE LUNG CANCER
85% of lung cancers are caused by smoking.
80% of lung cancer victims die within three years.

Some examples from other countries’ include the following variations:

Smoking harms you and others around you

Protect children, do not let them inhale your smoke

Smoking causes a strong addiction, do not start

Smoking can cause a slow and painful death

In the USA, we currently only require text warning labels that must be placed on different areas of the package periodically.

For now, there is no requirement that graphic images be displayed. But should they?

USA TRIED TO GET GRAPHIC IMAGES ON PACKAGES, BUT WE FAILED

In 2009, President Obama signed the Family Smoking Prevention and Tobacco Control Act into law.

The law gave the FDA the authority to regulate the manufacture and sale of tobacco products. The Tobacco Control Act mandates that every cigarette package include one of nine concise phrases highlighting the deleterious effects of smoking. The Act directed the FDA to promulgate “color graphics depicting the negative health consequences of smoking to accompany” the textual warnings.

In 2011, the FDA had selected the nine graphical labels from a group of thirty-six proposed images after comprehensive studies of the effectiveness of each to be placed on cigarette packages.

The chosen images included photographs and illustrations depicting a comparison of a diseased lung to a healthy lung, an autopsied torso, a set of teeth and gums ravaged by smoking, a cartoon image of child in an incubator, a close-up of a tracheotomy, a woman– perhaps a mother?–blowing smoke into a child’s face, a distraught woman, a man attached to a respirator, and a man posing in a t-shirt on which is printed an anti-smoking slogan.

Here were some of them:

Shortly after FDA unveiled the new warning labels, five tobacco companies, led by R.J. Reynolds, filed suit in the District of the District of Columbia.

The tobacco companies argued that the government cannot “compell” speech, as a violation of the first amendment.

Like everything in law, there are exceptions.

The general rule is that the government may not force you to do or say anything or endorse a position.

Requiring graphic labeling on a cigarette package is forcing the manufacturer to endorse a view point and promote a message.

Therefore, the court held that the requirement of graphic imagery violates free speech.

Now you may ask, “well, then how come they have to have warning labels at all… doesn’t that compell speech?”

Yes, it does.

But there is an exception:

The government MAY compell speech from a company… IF the speech is:

• Accurate.
• Purely factual.
• Uncontroversial.

So, a general warning about the dangers of smoking is accurate, factual, and uncontroversial.

Not only is it a medical fact supported by a wealth of research that smoking is bad for you, it’s also common knowledge and uncontroversial.

So you can have a warning label, but the court raised their eyebrows at displaying images of certain medical disorders because an image can communicate many things.

For example, smoking isn’t the only thing that causes amputation of limbs, or heart disease or stunted fetal growth.

Because the images are subjective in nature and more open to interpretation by the consumer, the court held that they did not meet the standard of being “factual.”

IN 2020 THE FDA TRIED AGAIN

In 2020, the FDA rewrote the regulation allowing for images on cigarette packages, and released new images it wanted cigarette makers to display.

As expected, they were immediately sued by a bunch of tobacco companies.

Note: By the way, we talked about whether or not graphic images lead to less smoking. Well, it’s pretty telling that tobacco companies are fighting so hard to prevent it. Seems like they think it will affect their sales.

Anyway –

The tobacco companies sued again, and won at the district court level in Texas (the first boss).

Then the FDA appealed to the 5th circuit court (the boss below the Supreme Court) where they won and the decision was reversed.

So, the FDA won, but it was a precipitous win.

If this ever reaches the Supreme Court, they would likely side with tobacco companies because of the conservative slant, and because this deals with freedom of speech.

A conservative Supreme Court would likely try and be over protective of freedom of speech and side with tobacco companies.

As it stands now,  the FDA does not recommend that manufacturers, distributors, and retailers submit plans for required warnings on cigarette packages and advertisements. If an entity has already submitted a plan, no further action is needed at this time. The FDA will provide further updates about submission of cigarette plans as they become available.