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Cigarette package fight not over yet

| Tuesday, Oct. 9, 2012, 8:08 p.m.

RICHMOND — The government is asking a federal appeals court to rehear a challenge to a Food and Drug Administration requirement that tobacco companies to put large graphic health warnings on cigarette packages to show that smoking can disfigure and kill people.

The Justice Department filed a petition on Tuesday asking for the full court to rehear the case after a three-judge panel of the U.S. Court of Appeals in Washington affirmed in August a lower court ruling blocking the mandate, saying it ran afoul of the First Amendment's free speech protections. However, the court rarely grants such appeals.

Some of the nation's largest tobacco companies, including R.J. Reynolds, 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 anti-smoking advocacy. The government argued the photos of dead and diseased smokers are factual.

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-smoking hotline, 1-800-QUIT-NOW.

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, billboards and TV.

In a 2-1 decision, the appeals court panel 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 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.

But in its appeal seeking a full court rehearing, the government argued that the text of the warnings are “indisputably accurate” and the format, including the use of graphics, is tailored to the demand of a “market in which the vast majority of users become addicted to a lethal product before age 18.”

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