RICHMOND, Va. — The federal government cannot require tobacco companies to put large graphic health warnings on cigarette packages to show that smoking can disfigure and kill people, a divided federal appeals court panel ruled Friday.
In a 2-to-1 decision, the US Court of Appeals District of Columbia Circuit affirmed a lower court ruling that the requirement ran afoul of the First Amendment’s free speech protections.
The Appeals Court tossed out the requirement and told the Food and Drug Administration to go back to the drawing board. The decision is considered a blow to one of the Obama administration’s major public health initiatives, raises the prospect of another US Supreme Court tobacco battle, and opens the door to further challenges of the FDA’s regulatory scheme.
Some of the nation’s largest tobacco companies, including R.J. Reynolds Tobacco Co., sued to block the mandate to include warnings to show the dangers of smoking and encouraging smokers to quit lighting up. They argued that the proposed warnings went beyond factual information into antismoking advocacy. The government argued that photos of dead and diseased smokers are factual in conveying the dangers of tobacco, which is responsible for about 443,000 deaths in the United States a year.
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 language that says 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-smokinghot line, 1-800-QUIT-NOW.
In the majority opinion, the Appeals Court wrote that the case raises ‘‘novel questions about the scope of the government’s authority to force the manufacturer of a product to go beyond making purely factual and accurate commercial disclosures and undermine its own economic interest — in this case, by making ‘every single pack of cigarettes in the country [a] mini billboard for the government’s anti-smoking message.’’
The court also 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.
Tobacco companies increasingly rely on their packaging to build brand loyalty and grab consumers — one of the few advertising levers left to them after the government curbed their presence in magazines and on billboards and television.
‘‘It’s a significant vindication of First Amendment principles,’’ said Floyd Abrams, an attorney representing Lorillard Tobacco. ‘‘There’s never been any doubt that the government could require warnings on products that can have dangerous results. And what the court is saying is that there are real limits on the ability of the government to require the manufacturer of a lawful product to denounce the product in the course of trying to sell it.’’
The FDA declined to comment on pending litigation and the Justice Department said it would review the Appeals Court ruling. Public health groups are urging the government to appeal.