The nanny state lost a battle in federal court today. A judge has blocked the implementation of a new warning label requirement from the Food and Drug Administration on cigarette packs that would have forced manufacturers to add graphic images of disease and death. Judge Richard Leon ruled that the FDA was forcing manufacturers to publish advocacy rather than legitimate warnings, and that the industry’s lawsuit against the FSA has a high likelihood of success:
A judge on Monday blocked a federal requirement that would have begun forcing tobacco companies next year to put graphic images including dead and diseased smokers on their cigarette packages.
U.S. District Judge Richard Leon ruled that it’s likely the cigarette makers will succeed in a lawsuit to block the requirement. He stopped the requirement until the lawsuit is resolved, which could take years.
Leon found the nine graphic images approved by the Food and Drug Administration in June go beyond conveying the facts about the health risks of smoking or go beyond that into advocacy – a critical distinction in a case over free speech.
The packaging would have included color images of a man exhaling cigarette smoke through a tracheotomy hole in his throat; a plume of cigarette smoke enveloping an infant receiving a mother’s kiss; a pair of diseased lungs next to a pair of healthy lungs; a diseased mouth afflicted with what appears to be cancerous lesions; a man breathing into an oxygen mask; a cadaver on a table with post-autopsy chest staples; a woman weeping; a premature baby in an incubator; and a man wearing a T-shirt that features a “No Smoking” symbol and the words “I Quit”
“It is abundantly clear from viewing these images that the emotional response they were crafted to induce is calculated to provoke the viewer to quit, or never to start smoking – an objective wholly apart from disseminating purely factual and uncontroversial information,” Leon wrote in his 29-page opinion. He pointed out that at least some were altered photographs to evoke emotion.
I make no defense of cigarettes and the efforts by manufacturers to increase their addictiveness. If you smoke cigarettes, stop; if you don’t, don’t start at all. But unless the government wants to make them illegal, they do not have the authority to seize the property of the manufacturer to conduct advocacy instead of requiring a dispassionate warning of the dangers associated with the use of the product. And in what has become an obvious and overwhelming hypocrisy, the government has no intention of outlawing cigarettes, because they make too much money off of cigarette sales.
The most amusing aspect of this fight has been the accuracy with which Christopher Buckley predicted this nanny-state intervention in his witty satire Thank You For Smoking. Instead of treating Americans as children, let’s have people make their own choices, and get the government out of the social-engineering industry.