Cigarette Warning Rehearing Denied by U.S. Court of Appeals

If the U.S. Supreme Court doesn't take up the issue in the next three months, the federal government's bid to require graphic health labels on cigarette packages may die.

In the latest round of the fight, an appeals court on Wednesday denied the federal government’s request to reconsider its decision blocking a requirement that would have forced tobacco companies to put large graphic health warnings on cigarette packages showing that smoking could disfigure and even kill people.

The U.S. Court of Appeals in Washington, D.C. did not provide any reason denying the request for the full court or a panel to rehear the case.

A Justice Department spokesman declined to comment. The government has 90 days to appeal the decision to the U.S. Supreme Court.

Some of the nation’s largest tobacco companies sued to block the mandate to include warnings revealing the dangers of smoking and encouraging smokers to quit lighting up. They argued the proposed warnings went beyond factual information into anti-smoking advocacy. The government argued the photos of dead and diseased smokers are factual.

The nine graphic warnings, proposed by the FDA, include color 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 text stating smoking causes cancer and can harm fetuses. The warnings were to cover the entire top half of cigarette packs, front and back, and include the phone number for a stop-smoking hotline.

Meanwhile, tobacco companies increasingly rely on their packaging to build brand loyalty and grab consumers.

The appeals court panel in August wrote that the cases raises the question of whether the government can force the manufacturer of a product to go beyond making accurate disclosures and undermine its own economic interest. It wrote that the FDA “has not provided a shred of evidence” showing that the warnings will “directly advance” its interest in reducing the number of Americans who smoke.

But the government argued in its appeal for rehearing that the warnings are "indisputably accurate" and the format, including the use of graphics, is tailored to the demand of a "market in which the vast majority of users become addicted to a lethal product before age 18." It also argued that the First Amendment does not require the government to show how one part of a multi-faceted anti-smoking public health campaign directly reduces smoking rates.

According to the American Lung Association, Hispanics generally have lower rates of smoking than other racial groups. Rates of current smoking among Latinas were also much lower than the rates seen among women of other races, as well as Hispanic men.

In 2008, Cubans had the highest rates of smoking, followed by Mexican-Americans. The lowest rates were among Dominicans. However, Puerto Rican women are nearly twice as likely to smoke as women of other Hispanic groups.

Based on reporting by the Associated Press.

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