The Family Smoking Prevention and Tobacco Control Act of 2009 On February 12, 2012 a federal court ruled that the new graphic warning labels scheduled to be placed on cigarettes packages in September 2012 violate tobacco companies’ first Amendment right. These warning labels were required by The Family Smoking Prevention and Tobacco Control Act of 2009 which was signed by President Obama on June 22, 2009. Rep. henry A. Waxman, the author and champion of the Food and Drug Administration-tobacco bill, said that the FDA is the only agency equipped to limit and reduce the damage that tobacco use does to the nation’s health, and stem the recruitment of new smokers among the nation’s youth(Healy, 2009). On the other hand, Community health sciences professor Michael Siegel said that the Act creates the appearance of regulation without allowing actual regulation (Sanford, 2012).
The FDA should have powers to influence tobacco use by the Act. The purpose of this paper is to examine whether the main purpose of this Act is to preserve the well-being of U.S. citizens, or rule the cigarette companies, how the package labels influence tobacco use, and if the Act violated Freedom of Speech of cigarette companies, then what the Act can do anything effective to prevent youth smokers except package warnings. These are important questions because now that the court ruled the regulation which had been success to influence on youth smokers, the U.S. government needs to find another effective way to prevent youth smokers as soon as possible.
Tobacco Control Act
According to the Food and Drug Administration, The Family Smoking Prevention and Tobacco Control Act became law on June 22, 2009. It gives the Food and Drug Administration (FDA) the authority to regulate the manufacture, distribution, and marketing of tobacco products to protect public health(“Overview of the Family Smoking Prevention and Tobacco Control Act: Consumer fact Sheet”, 2012). Melissa Healy (2012) overstated that the Act stipulates that the FDA’s regulation would be underwritten by user fees levied on the tobacco companies and regulating tobacco became a tricky job for the FDA given a task of protecting the nation’s health.
The Impact of the Act on Tobacco Use
According to the American Academy of Pediatrics, warning labels which were required by The Family Smoking Prevention and Tobacco Control Act of 2009 played a critical role in educating children, teens, and parents about the harmful effects of tobacco. Dr. Block said “With the average pack-a-day smoker encountering cigarette warning labels more than 7,000 times a year, the Food and Drug Administration’s effort to improve warning labels would be a significant step forward in the effort to reduce the death and disease caused by tobacco use, especially in young people” (Poslosky, 2012). David Hammond, Ph.D., School of Public Health and Health Systems, evaluated the perceived efficacy of the 36 proposed FDA warnings.
The result from the evaluation provided evidence that pictorial health warnings on tobacco packages are a cost-effective means to increase public awareness about the danger of tobacco use (Hammond, 2011). The U.S. Surgeon General issued the first report on youth smoking since 1994. Surgeon General Regina Benjamin calls tobacco use a “pediatric epidemic.” She suggested the Act needs to focus on teenagers and young adults. That means doing a lot more to counter the billions of dollars the tobacco industry still spends on advertising and marketing (Burnham, 2012).
R.J. Reynolds Tobacco et al v. FDA
Floyd Abrams, a New York attorney for the plaintiffs and prominent First Amendment scholar of the Tobacco Act, said that “The government, as the court said, is free to speak for itself, but it may not, except in the rarest circumstance, require others to mouth its position.” Christopher W. Hansen of the Cancer Action Network, on the other hand, stated that: “today’s ruling ignores the overwhelming, decades-long need for strong cigarette warning labels and allows Big Tobacco to proceed ‘business as usual,’ continuing to promote its highly addictive and deadly products” (“Federal Judge Blocks Imposition of Graphic Anti-Smoking Pictures on Tobacco Products”, 2012).
Gary Sanford (2012) suggested that if the government’s aim is to protect society from the consequences of unhealthy behaviors, the Act should have been “The American Family Protection Act” and includes other preventable health risk behaviors such as obesity or alcohol. The Act should not be “attacking” only cigarette companies. AAP president Robert W. Block said “Smoking is 100 percent preventable. Today’s decision ensures that the American public, particularly children, teens and adolescents so easily influenced and frequently targeted by tobacco product advertising, will be educated about the dangers of tobacco use. Hopefully, this means fewer children will start to smoke in the first place, and more lives will be saved” (Poslosky, 2012).
What the Tobacco Act Does
The Act specifically packaging and advertisements for cigarettes and smokeless tobacco must have revised warning labels with a larger font size. Font colors are limited to white on a black background or black on a white background. – Sec. 201 and 204. Cigarette package health warnings will be required to cover the top 50 percent of both the front and rear panels of the package and the nine specific warning messages must be equally and randomly displayed and distributed in all areas of the United States. These messages must be accompanied by color graphics showing the negative health consequences of smoking cigarettes. – Sec. 201. Smokeless tobacco package warnings must cover 30 percent of the two principal display panels, and the four specific required messages must be equally and randomly displayed and distributed in all areas of the United States. – Sec. 204(“Overview of the Family Smoking Prevention and Tobacco Control Act: Consumer fact Sheet”, 2012).
Requiring warning labels was a key part of tobacco control policy because tobacco advertising plays an important part in encouraging non-smokers to become smokers. In 2010, David Hammond, Ph.D., School of Public Health and Health Systems, conducted Web-based surveys to evaluate the perceived efficacy of the 36 proposed FDA warnings. He concluded seven of the nine health warnings selected by the FDA for implementation were among the proposed warnings rated as most effective. However, the warning(s) added for comparison were rated higher than the FDA-selected warning for five of the nine sets, suggesting some warnings could be improved for greater impact such as full color (vs. black and white), featured real people (vs. comic book style), contained graphic images (vs. nongraphic), and included a telephone “quit line” number or personal information.
The Act Gives FDA authority over registration and inspection of tobacco companies, Standards for tobacco products, “Premarket Review” of new tobacco products, “Modified risk” products, and Enforcement action plan for advertising and promotion restrictions. There are limits on FDA’s authority. The FDA cannot ban certain specified classes of tobacco products require the reduction of nicotine yields to zero, require prescriptions to purchase tobacco products, or ban face-to-face tobacco sales in any particular category of retail outlet.
Influences of Warning labels on Tobacco Use
Prevention of Tobacco Use v Freedom of Speech
The Family Smoking Prevention and Tobacco Control Act passed in 2009 have required nine written warnings such as “Cigarettes are addictive” and “Tobacco smoke causes harm to children.” Also included would have been alternating images of a corpse and smoke-infected lungs. A group of tobacco companies led by R.J. Reynolds and Lorillard had sued, saying the warnings would be cost-prohibitive, and would dominate and damage the packaging and promotion of their particular brands. The legal question was whether the new labeling was purely factual and accurate in nature or was designed to discourage use of the products (Mears, 2012).
The Court’s ruling
A federal judge, D.C. District Court Judge Richard Leon, concluded that the nine warning labels designed by the FDA—which include images of a simulated cadaver, a cartoon drawing of a baby in a cloud of smoke, and a photo of a blackened lung, among others—go beyond simple factual warnings and are a form of advocacy imposed by the government. The court decided that because the warning labels take up so much of the package, and because they involve images that do more than convey dispassionate facts, the labels violate the First Amendment.