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Judge blocks graphic images on cigarette packages

RICHMOND - A judge yesterday blocked a federal requirement that would have begun forcing US tobacco companies to put large graphic images on their cigarette packages later this year to show the dangers of smoking and encouraging smokers to quit lighting up.

US District Judge Richard Leon in Washington ruled that the federal mandate to put the images, which include a sewn-up corpse of a smoker and a picture of diseased lungs, on cigarette packs violates the free speech amendment to the Constitution.

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He had temporarily blocked the requirement in November, saying it was probable cigarette makers would succeed in a lawsuit, which could take years to resolve. That decision already is being appealed by the government.

Some of the largest US tobacco companies, including R.J. Reynolds Tobacco Co., and Lorillard Tobacco Co., had questioned the constitutionality of the labels, saying the warnings do not simply convey facts to inform people’s decision whether to smoke but instead force cigarette makers to display government antismoking advocacy more prominently than their own branding. They also said that changing cigarette packaging would cost millions of dollars.

Meanwhile, the Food and Drug Administration has said that the public interest in conveying the dangers of smoking outweighs the companies’ free speech rights.

In his ruling yesterday, Leon wrote that the graphic images “were neither designed to protect the consumer from confusion or deception, nor to increase consumer awareness of smoking risks; rather, they were crafted to evoke a strong emotional response calculated to provoke the viewer to quit or never start smoking.’’

“While the line between the constitutionally permissible dissemination of factual information and the impermissible expropriation of a company’s advertising space for government advocacy can be frustratingly blurry, here the line seems quite clear,’’ Leon wrote.

The judge also pointed out alternatives for the federal government to curb tobacco use, such as increasing antismoking advertisements, raising tobacco taxes, reducing the size and changing content of the labels, and improving efforts to reduce youth access to tobacco products.

The FDA and the Justice Department declined to comment.

Floyd Abrams, a lawyer representing Lorillard in the case, said he was pleased with the ruling.

“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,’’ Abrams said.

While the government, public health officials, tobacco companies, and others “share a responsibility to provide tobacco consumers with accurate information about the various health risks associated with smoking . . . the goal of informing the public about the risks of tobacco use can and should be accomplished consistent with the US Constitution,’’ Martin L. Holton III, executive vice president and general counsel for R.J. Reynolds, said in a statement.

Matthew L. Myers, president of the Campaign for Tobacco-Free Kids, called Leon’s ruling “wrong on the science and the law.’’

The warnings “unequivocally tell the truth about cigarette smoking - that it is addictive, harms children, causes fatal lung disease, cancer, strokes, and heart disease, and can kill you. . . . Not even the tobacco industry disputes these facts,’’ Myers said in a statement.

The FDA requirement said the labels were to cover the entire top half of cigarette packs, front and back and include a number for a stop-smoking hotline. The labels were to constitute 20 percent of cigarette advertising, and marketers were to rotate use of the images.

Joining North Carolina-based R.J. Reynolds, owned by Reynolds American Inc., and Lorillard Tobacco, owned by Lorillard Inc., in the lawsuit are Commonwealth Brands Inc., Liggett Group LLC, and Santa Fe Natural Tobacco Co.

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