In the United States, repeated legal actions by tobacco companies are slowing down the introduction of graphic health warnings

An appeals trial is expected to rule this summer on the fate of graphic health warnings on cigarette packages in the U.S. market. After 13 years of litigation, the outcome of this legal battle remains uncertain.

Health warnings on cigarette packages have barely changed in the United States since 1985, consisting of a text message printed on the narrow edge of the pack. However, since 2002, more than 100 countries have adopted graphic health warnings, including efficiency is much more significant than just text messages, especially among young people but also among some smokers. This situation owes much to the obstructionist power of the tobacco industry, which has multiplied appeals to counter this public health initiative[1].

Thirteen years of legal proceedings

Graphic health warnings have been required in the United States since 2009, after Congress passed the Family Smoking Prevention and Tobacco Control Act. This law included renewing text health warnings and introducing graphic health warnings, covering 50% of the main surfaces of cigarette packages and 20% of authorized advertisements.

In 2011, the Food and Drug Administration (FDA) released nine visuals that would accompany the health warnings, along with a link to a smoking cessation hotline. Reynolds and other tobacco companies sued the FDA under the First Amendment, arguing that echoing the government’s “ideological messages” infringed on their free speech and failed to cover up established facts. The U.S. Court of Appeals for the District of Columbia ruled in their favor in 2012, finding that the proposed visuals were too provocative and that it was intimidating to urge smokers to quit.

Another ruling in a tobacco industry case that was lost against the Tobacco Control Act confirmed that larger, pictorial health warnings can help inform the public about the risks of smoking.

FDA between two injunctions on graphic warnings

Faced with conflicting legal decisions, the FDA has not pursued this case since then. the FDA. It took a new trial in 2018, this time at the initiative of public health stakeholders against the FDA's inertia, for the latter to take it up again. A set of eleven visuals was then proposed to Congress. These were medical illustrations "toned down" compared to the previous version and without the smoking cessation hotline. The FDA also chose to give a large place to lesser-known tobacco-related conditions, such as diabetes or cataracts.

RJ Reynolds and other tobacco companies sued the FDA again over the new versions of the graphic warnings, choosing the Texas district court in Tyler, Texas. The two federal judges in Texas were appointed by Donald Trump and seemed more sympathetic to the industry. That assumption was confirmed when Judge J. Campbell Barker rejected the FDA's proposals, considering that they were not "purely factual", but "provocative" and carriers of "value judgment". Similarly, the judge considered that the sad expression displayed in one of the visuals by a woman suffering from a neck tumour could be interpreted as an ideological message implying that "smoking is a mistake"It is this decision of Judge Barker which is today the subject of an appeal judgment before the 5^e Room at the request of the Biden administration.

A legal outcome that remains uncertain

The prospects of success of this appeal seem slim, however, given the very conservative tendency of this 5^e House. If the appeals court rules that the FDA's visuals need to be revised again, the review process could take two to three years, and the new visuals could be challenged again by the tobacco companies. If the visuals are approved by the appeals court, the tobacco companies could appeal to the Supreme Court, which is dominated by six conservatives who seem sympathetic to the tobacco industry's arguments.

Throughout these procedures, cigarette packets do not carry graphic health warnings that might deter young people from experimenting with tobacco, which is exactly the desired objective by manufacturers. However, a study has shown that these new warnings, if they were in force today, would save money 539,000 premature deaths in the United States by the end of the century. All this in a country which, despite a smoking prevalence now reduced to 12%, has more than 480,000 annual deaths due to smoking.

Keywords: graphic health warnings, FDA, J. Campbell Barker, RJ Reynolds.

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[1] Sachs NM, Tobacco Giants Are Fighting to Keep Graphic Warning Labels off Their Products, Slate, published June 12, 2023, accessed June 14, 2023.