New Graphic Tobacco Warnings and the First Amendment

SUMMARY
In an article for JAMA Oncology, Tony Yang, a professor of health services and policy researcher at the George Washington University, and his co-authors at the Ohio State University argue that if the U.S. Food and Drug Administration’s 2019 proposed rule on graphic tobacco warnings is finalized, the potential effect on consumer knowledge and understanding about the harms of smoking is likely to be high.

BACKGROUND
The FDA proposed a rule in August 2019 to require 13 new warnings for cigarette packages and advertisements. The warnings would state that smoking causes various diseases and conditions, including cancer, heart disease, diabetes, erectile dysfunction, and cataracts. As required by law, the proposed warnings would also be accompanied by color images that cover the top 50% of front and rear panels of cigarette packages and at least 20% of the top of cigarette advertisements.

The new proposal follows a failed attempt in 2012 to place graphic warnings on cigarette packaging.

FAILED FIRST ATTEMPT
In 2012, a federal appeals court struck down the FDA’s first attempt to require such graphic warnings, stating that the FDA’s rule compelled speech in violation of First Amendment rights. The court argued that the FDA failed to provide evidence that the graphic warnings—which included images of a baby near a cloud of smoke, a man wearing an “I QUIT” shirt and a woman crying—would lead to a reduction in tobacco use.

NEW ATTEMPT
Learning from their previous attempt, the FDA’s new proposed images are meant to educate consumers about the potential harms of smoking, not reduce tobacco use. The new images are more clear representations of the factual text-based content of the proposed required warnings, including a child wearing an oxygen mask, eyes with cataracts, diseased lungs and a man frustrated by impotence.

CONCLUSIONS
Dr. Yang and his co-authors believe the graphic warnings are a critical part of a larger multimodal strategy for reducing tobacco use, the leading preventable cause of cancer and cancer deaths in the United States.

EMBARGO INFORMATION
The article, “New Graphic Tobacco Warnings and the First Amendment” will be published online in JAMA Oncology on Thursday, Feb. 13, 2020 at 11 a.m. EST.

Dr. Yang is available to discuss the 2019 proposed warnings and why he thinks they should survive constitutional scrutiny.

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