Addiction and age 21

Addictions are largely problems of people who begin smoking, drinking or using other drugs before age 21, according to a report published Wednesday by the National Center on Addiction and Substance Abuse at Columbia University.
The report calls adolescent substance use American’s leading public health problem and points to statistics that show an “epidemic” of use among minors. For example, 75% of all high school students have used addictive substances. One in five meets the medical criteria for addiction.
The report comes at a time when science has clarified a critical aspect of addiction. Substances act differently on the developing brain than they do on the adult brain. The report notes that one in four Americans who began using any addictive substance before age 18 are addicted compared with one in 25 Americans who started using at age 21 or older. Delaying the use of addictive substances for as long as possible should be a high priority of parents and pediatricians.
However, 46% of children under age 18 live in a household where someone 18 or older is smoking, drinking excessively, misusing prescription drugs or using illegal drugs, the report concluded. Moreover, many adults fail to see the harm in smoking, drinking or marijuana use in people under age 21 while the current culture portrays addictive substances as glamorous or fun.
“The combination of adolescence, an American culture that glorifies and promotes substance use, and easy access to tobacco, alcohol and other drugs creates a perfect storm for our teens and for taxpayers,” said Jim Ramstad, a board member of the National Center on Addiction and Substance Abuse who chaired the report’s national advisory commission. “We no longer can justify writing off adolescent substance use as bad behavior, as a rite of passage or as kids just being kids. The science is too clear, the facts are too compelling, the health and social consequences are too devastating and the costs are simply too high.”
Measures to reduce teen substance use include having positive adult role models, rules from parents prohibiting substance use, participation in clubs and activities, involvement in religious or spiritual practices, strong school and community attachment, early screening and intervention programs, reduction of pro-substance use advertising and media messages and targeted prevention programs for teens at high risk.
Susan Foster, vice president and director of policy research and analysis for CASA said: “We rightfully worry about other teen health problems like obesity, depression or bullying, but we turn a blind eye to a more common and deadly epidemic that we can in fact prevent.”
The report is titled “Adolescent Substance Use: American’s #1 Public Health Problem.”
By Shari Roan
Los Angeles Times

Will New Packaging Stop Big Tobacco?

Graphic anti-smoking labels are coming to a tobacco retailer near you. But will it matter to tobacco companies’ profits?
The FDA is requiring that cigarettes sold in the U.S. feature pictorial warning labels on the top 50% of the front and back of the package. Similar warning labels must comprise at least 20% of advertisements. Domestic tobacco players such as Altria, best-selling-cigarettes-brands-across-the-tobacco-industry, Lorillard, and Vector Group have until the autumn of 2012 to comply.
The new regulations are being implemented as part of the landmark 2009 Family Smoking Prevention and Tobacco Control Act. The labeling requirements are based on the best practices from other countries. Large labels are more effective than smaller ones, and explicit pictures are more effective than text-only cautions. Already 35 countries require health messages to cover at least 50% of the package. So if you thought abroad-only rival Philip Morris International might be an alternative, well, it’s already been dealing with similar issues.
Several studies show that graphic labels do promote awareness about the dangers of smoking. And research from the International Tobacco Control Policy Control Project shows that “comprehensive warning labels reduce smoking consumption, increase motivation to quit, and increase the likelihood that they will remain abstinent following a quit attempt,” explains the Campaign for Tobacco-Free Kids.
But often awareness does not translate into effectiveness, as anyone who’s tried and failed at dieting and exercising knows. Still, there seem to be indications that the packaging tactics will be at least somewhat effective.
While that provides a headwind to Big Tobacco’s profits, it doesn’t mean these companies can’t still extract more revenue from existing smokers while continuing to closely monitor their costs, as they’ve done for quite a while now. The decline in smoking rates bottomed around 2004 and has remained at about 20% of Americans. This industry still has tremendous pricing power, and market share is very important.
Moreover, because the new labels obscure a significant portion of the packaging, the new guidelines could reinforce the importance of the brands themselves. In other words, the players with strong share are likely to retain their relative positions. And that would be a relative win for Altria, the U.S. market-share leader.
Reynolds, Lorillard, and others are challenging the legality of the labels. Given its stronger position, Altria is probably the best play in this challenging environment, but don’t confuse that with excitement to run out and buy shares at this point.
By Jim Royal

EU uneasy with plain packaging

THE European Union has raised concerns about moves to introduce plain packaging for cigarettes, at World Trade Organisation forums in Geneva.
The EU’s concerns came to light as tobacco giant Philip Morris yesterday launched a legal challenge to the Gillard government’s plan to introduce plain packaging, as revealed in The Australian yesterday. The court case exposes taxpayers to potential compensation claims independently estimated to run as high as $3 billion.
Health Minister Nicola Roxon has said the European Union was “looking closely” at plain packaging “and has encouraged us in going down this path”. But The Australian understands the EU expressed concerns about the measure at the most recent meeting of the WTO Technical Barriers to Trade committee.
There are fears plain packaging contravenes the international intellectual property legal framework by placing restrictions on the use of trademarks.
The Australian understands the EU raised questions about the scientific data considered in preparing the policy, the impact assessment process and other alternatives to stop smoking. It is also understood the EU asked how Australia had taken into consideration its obligations under other WTO treaties such as the Agreement on Trade Related Aspects of Intellectual Property Rights, or TRIPs, the cornerstone of the international intellectual property regime.
Opposition trade spokeswoman Julie Bishop called on Trade Minister Craig Emerson to show the government was complying with TRIPs and other treaties with its plain-packaging plans.
“He must guarantee that not only will this plain packaging legislation be compliant with our international obligations but that he has obtained specific legal advice to that effect,” Ms Bishop said.
“Given Labor’s lack of credibility on this issue, as it continues to solicit donations from tobacco companies, I want to see actual evidence of the advice as we cannot just take Labor’s word for it.”
Dr Emerson justified the government’s stand in response to queries from the International Chamber of Commerce and the US House of Representatives Subcommittee on Asia and the Pacific. “Australia’s plain packaging policy is entirely consistent with our international obligations,” Dr Emerson says in the letters obtained by The Australian.
“As a member of the World Trade Organisation, Australia has the right to take measure necessary to protect public health. These measures will be implemented in a way that is consistent with our intellectual property, trade and investment obligations.”
Ms Roxon said yesterday the government had taken legal advice before introducing the new laws and believed it was on “very strong” legal ground in introducing plain packaging of cigarettes.
The Health Minister refused to answer questions about the size of the legal budget the government has set aside to cover the cost of challenges brought by the tobacco industry. When asked whether lawyers would be the biggest winners out of plain packaging laws, Ms Roxon said: “I think the public stand to be the biggest winners out of this measure.”
By Christian Kerr and Sue Dunlevy
The Australian

Reducing illegal tobacco sales to minors to an all-time low

A new report on the Synar Amendment program — a federal and state partnership aimed at ending illegal tobacco sales to minors — shows that all the states and the District of Columbia have continued to meet their goals of curtailing sales of tobacco to underage youth (those under 18). The report by the Substance Abuse and Mental Health Services Administration (SAMHSA) which sponsors the Synar program shows that the average national retailer violation rate of tobacco sales is down to 9.3-percent — the lowest level in the 14 year history of the program.
The Synar Amendment (introduced by the late Representative Mike Synar of Oklahoma and enacted as Section 1926 of the federal Public Health Service Act) requires states and U.S. jurisdictions to have laws and enforcement programs for prohibiting the sale and distribution of tobacco to persons under 18. The program is part of SAMHSA’s strategic initiative on preventing substance abuse and mental illness.
Under the regulation implementing the Synar Amendment, states and U.S. jurisdictions must report annually to SAMHSA on their retailer violation rates, which represent the percentage of inspected retail outlets that sold tobacco products to a customer under the age of 18.
Over the last 14 years, data reported by states and the District of Columbia has indicated a clear downward trend towards reducing tobacco sales to minors. The exception was in FY2009 when the average national retailer violation rate of tobacco sales to minors increased from 9.9-percent in FY2008 to a rate of 10.9-percent. In FY2010, however, the downward trend returned as the national average rate decreased significantly to 9.3- percent.
For the fifth year in a row no state was found out of compliance with the Synar regulation — in fact:
  • In FY2010, 47 of the 50 states and the District of Columbia achieved non-compliance rates below 15-percent, up from 43 states in FY2009, and
  • Similarly, 34 of the 50 states achieved non-compliance rates below 10-percent, up from 22 states in FY2009.
These rates continue to stand in sharp contrast with the situation 14 years ago at the Synar program’s inception when the highest reported state retailer violation rate was 72.7-percent.
“This report brings welcome news about the measurable progress states have made in reducing illegal sales of tobacco to minors,” said SAMHSA Administrator Pamela S. Hyde, J.D. “Reducing access to tobacco products is only one part of the equation. Progress in reducing actual tobacco use among young people has stalled. Putting into place new prevention efforts that reach youth in meaningful ways can go a long way toward eliminating the health risk of tobacco use.”
According to the report, although the cutbacks in state enforcement programs due to the economy and budget reductions may have put the effectiveness of some state programs in jeopardy a number of other factors may have helped sustain and strengthen them.
One important factor was the enactment of the Family Smoking Prevention and Tobacco Control Act, which was signed into law by President Obama on June 22, 2009. Under this law the Food and Drug Administration (FDA) contracts, to the extent feasible, with states and U.S. territories to carry out compliance check inspections of retailers in connection with the enforcement of the Act including enforcement of the new Federal youth access regulations. To date, FDA has entered into contracts with 15 states and is expected to continue contracting with others in the months to come.
SAMHSA and FDA continue to collaborate to ensure that their programs work effectively together to help reach the shared goal of eliminating sales of tobacco to underage youth.
The FY2010 Annual Synar Reports: State Compliance, which includes compliance rates for each of the states and the District of Columbia, as well as a section on compliance rates for the U.S. Jurisdictions, is available at For related publications and information, visit
For more information about the FDA’s regulations restricting the sale and distribution of tobacco products to youth, visit:

FDA to independently review menthol cigarettes

The Food and Drug Administration is conducting an independent review of research on the public health impact of menthol cigarettes – which are mint flavored and one of the few growth sectors of the shrinking cigarette business.
The federal agency said Monday members of its Center for Tobacco Products will gather menthol studies and then submit its review to an external peer review panel next month. The process is expected to be completed in the fall of 2011. The results of the review will be available for public comment.
FDA spokesman Jeff Ventura said the review is meant to ensure that the “best available science is used to support regulatory and programmatic decision making.’’
The review comes after the FDA in March received a report from the Tobacco Products Scientific Advisory Committee on the minty smokes. Panels like the tobacco committee advise the FDA on scientific issues. The agency doesn’t have to follow its recommendations, but often does.
The report, which was mandated under the 2009 law giving the agency the authority to regulate tobacco, said removing menthol cigarettes from the market would benefit public health because the flavoring has led to an increase in smokers–- particularly among teens, African Americans, and those with low incomes. It also said that they make it harder for them to quit. The report, however, said menthol smokers are not likely to be at a higher risk of disease or exposed to a greater number of toxins.
The report concluded that more research is needed and the federal agency should develop a program to monitor marketing of menthol cigarettes. It also suggested that should the FDA choose to recommend a ban or other restrictions, the agency should study the potential for contraband menthol cigarettes, a concern raised by the tobacco industry and other trade groups.
A menthol ban or other restrictions on the flavored cigarettes would fall heavily on Lorillard Inc., whose Newport brand is the top-selling menthol cigarette in the U.S., with roughly 35 percent of the market. Lorillard, the country’s third-largest tobacco company, is based in Greensboro, N.C.
“We continue to strongly believe that an objective, thorough and rigorous scientific review will lead the agency to conclude that menthol cigarettes do not present any more harm than non-menthol cigarettes,’’ Gregg Perry, a spokesman for Lorillard, said in a statement on Monday.
In a statement, Richmond-based Altria Group Inc., parent company of the nation’s largest cigarette maker, Philip Morris USA, said the review of menthol in cigarettes should be “science-and evidence-based.’’
Michael Felberbaum
AP Tobacco Writer

Philip Morris Claims Australia’s Plain Cigarette Package Plan is Illegal

Philip Morris International Inc. (PM), the world’s largest publicly traded tobacco company, said an Australian proposal requiring cigarettes to be sold in plain packages violates a treaty with Hong Kong and may cause billions of dollars in damages.
The maker of Marlboro and Peter Jackson cigarettes said it served the government with a notice of claim stating its intention to pursue its case in international arbitration. Hong Kong has a 1994 treaty with Australia prohibiting the forced removal of trademarks, Anne Edwards, a Philip Morris spokeswoman, said in a phone interview today.
The Australian proposal is the first in the world to ban all logos and different colorings on cigarette packages. New Zealand, Canada and the U.K. had considered the move and didn’t put it in place because of concerns it would be illegal, British American Tobacco Plc (BATS) said in April. British American Tobacco said it’s also considering its legal options.
“There’s a massive public policy argument here,” Wayne Condon, a partner at Griffith Hack who specializes in intellectual property law, said in a phone interview. “The Commonwealth government would be facing a multimillion dollar claim, if not more,” should the tobacco companies succeed.
Under the Australian constitution, parliament can’t make laws under which the government would acquire property without providing adequate compensation.
Trademarks Are Property
“It is property,” Condon said, referring to the tobacco companies’ logos and trademarks that are used on cigarette packages. “The law defines trademarks as property.”
Philip Morris’s Asian unit is based in Hong Kong and owns Philip Morris Ltd., the Australian unit.
“Damages caused by plain packaging may amount to billions of Australian dollars,” Edwards said. The tobacco company took the legal action to protect investors in Hong Kong, she said.
Australia has already banned the public display of tobacco products in most retail outlets. The government plans to outlaw logos on cigarette packs and force them to be sold in plain dark olive packaging, carrying health warnings instead of company logos. Cigarette brand names will appear on the packages in the same size and style of printing. The legislation, if passed by parliament, will come into force on Jan. 1, 2012.
A television advertising campaign, backed by Imperial Tobacco Australia Ltd. and titled “Stop This Nanny State,” urges Australians to contact their political representatives and stop the plain packaging law.
Won’t Be Intimidated
Australian Prime Minister Julia Gillard said she won’t be intimidated by the tobacco companies.
“We’re not taking a backward step,” she told Australian Broadcasting Corp. radio today. “We’ve made the right decision and we’ll see it through.”
The government raised tobacco taxes by 25 percent last year as it seeks to curb smoking, which is the nation’s largest single preventable cause of death, according to Health Minister Nicola Roxon.
“We don’t believe that taking that action is in breach of any of our international obligations,” Roxon told Sky News today. “We believe that we are able, and the Australian people I think would expect their government, to take action in the interests of public health.”
The government has received legal advice and believes it’s on “very strong ground” in drafting the law, Roxon said in an interview on Australian Broadcasting’s Lateline program April 7.
Mandatory Negotiations
The notice served by Philip Morris begins a mandatory period of negotiations to resolve the dispute, the company said. If an agreement isn’t reached in three months, the tobacco company plans to take the dispute to arbitration under the Arbitration Rules of the United Nations Commission on International Trade Law.
Philip Morris will suggest the arbitration hearing be held in Singapore, Edwards said.
In this case, the government may be intruding into the fundamental right of companies to exercise and exploit the intellectual property which they were granted, Condon said.
“What company would stand for having its brands, which are worth billions, taken away from them?” Scott McIntyre, a spokesman at British American Tobacco, said in April. “A large brewing company or fast food chain certainly wouldn’t, and we’re no different.”
McIntyre didn’t respond to a request for comment today.
Winfield Maker
British American Tobacco, maker of Winfield cigarettes, Australia’s best-selling brand, had 42 percent share of the grocery and supermarket cigarette sales and 56 percent share of convenience store sales in 2007, according to a Tobacco in Australia report, which was produced by the Cancer Council of Victoria.
Philip Morris had a 40 percent share of the grocery and supermarket sales and a 33 percent share of convenience store sales while Imperial Tobacco had an 18 percent, according to the report.
Winfield had a 31.7 percent share of the market, followed by Philip Morris’s Peter Jacksons at 18 percent.
About 15,000 Australians die each year from tobacco-related diseases caused by smoking, with social, health and economic costs put at A$30 billion ($31 billion) annually, Roxon said.
British American Tobacco has won a preliminary ruling in a separate case in the Australian state of Victoria over the covering up of labels with health warnings.
Trojan Infringement
Supreme Court Judge Elizabeth Hollingworth ruled in December that British American Tobacco could pursue a claim that its trademark was infringed by Trojan Trading Co. a distributor of Captain Black cigars, which covered the label with a health warning. Trojan said it was following the law in placing the graphic warning on the package.
British American Tobacco is seeking access to the legal advice the government received. The tobacco company failed in forcing the government to release the documents through a Freedom of Information request.
A federal appeals court has agreed to hear the case on Aug. 3 in Melbourne.
George Williams, a constitutional law professor at the University of New South Wales in Sydney said Australia’s top court has never addressed this particular question.
“The tobacco companies have a hard road ahead,” Williams said in a phone interview today. “They’re quite likely to lose.”
By Robert Fenner in Melbourne,; Joe Schneider in Sydney,

Missouri measure targets small tobacco firms

JEFFERSON CITY, Mo. — A proposed Missouri ballot measure poses the question: Should a $1 per pack tax be imposed on cigarettes made “by certain tobacco product manufacturers?”
Left unsaid is that the tax would not apply to the biggest tobacco companies, which sell the majority of cigarettes. What’s meant by “certain” tobacco makers is primarily the smaller companies, which sell cigarettes at the cheapest prices.
Although it’s dubbed the “Healthy Missouri Initiative Petition,” the measure appears to come not from health care groups but from large tobacco companies, which have been losing market share to upstart companies that were not part of the 1998 settlement among big tobacco firms and attorneys general in 46 states.
The proposal highlights the extent to which tobacco companies are willing to battle in Missouri, which has the nation’s lowest cigarette tax and one of the nation’s highest adult smoking rates.
The 1998 settlement calls for participating tobacco companies to pay more than $200 billion over 25 years to states. Laws enacted in those states also require companies that did not participate in the settlement to pay money into escrow funds based on the amount of cigarettes they sell. Those escrow accounts are intended to cover any future lawsuits against the companies and prevent them from enjoying significant price advantages that cut into the market share of big tobacco companies.
Yet the large tobacco companies – and many state attorneys general – contend those escrow laws left a loophole that requires states to refund any money that exceeds that state’s percentage share of the national settlement with the big companies. The result is that some smaller tobacco companies are refunded almost every dollar they put into the escrow fund – negating the financial strain that otherwise could have caused them to charge more for their product.
Despite the lobbying efforts of big tobacco companies, Missouri remains the only state in the 1998 settlement that has not subsequently passed legislation cutting those escrow refunds to smaller companies.
The battle between big and little tobacco companies matters to states because it affects their already strained budgets. When large tobacco companies lose market share, they can argue that states have failed to adequately seek payments from the companies that didn’t participate in the settlement. In such scenarios, the settlement agreement allows big tobacco companies to reduce their annual payments to states. The Wall Street Journal reported last week that big cigarette companies could recoup up to $2 billion under a proposed deal with state attorneys general related to the growing market share of companies that aren’t part of the settlement.
Having failed to change Missouri’s tobacco escrow law, the proposed ballot measure appears to be an alternative way for big tobacco companies to cut into the profits of their smaller rivals by imposing a tax that only affects companies who are not parties to the national settlement. An estimate by the state auditor’s office says the tax could raise $20 million to $100 million annually, which the initiative earmarks for programs that discourage tobacco use and for the attorney general’s enforcement efforts of the settlement agreement.
Tobacco companies that did not participate in the settlement contend it’s unfair to make them pay them – either to an escrow fund or through higher taxes – for the deceptive marketing campaigns conducted years ago by big tobacco companies.
Keith Burdick, managing partner of Xcaliber International Ltd based in Pryor, Okla., notes that his cigarette company didn’t get started until 2001, a few years after the settlement. To make his company pay into an escrow fund is like a city requiring motorists who are merely passing through to pay $50 to City Hall in case they do something wrong the next time they drive through town, Burdick said. The Missouri ballot proposal is equally wrong, he said.
“We don’t see it as really fair – you tax one group and not the other,” Burdick said. “It’s got Altria ( MO – news – people )’s name written all over it.”
A spokesman for Altria Group, the nation’s leading cigarette maker, declined to comment about whether the company sponsored or supports the Missouri ballot proposal. A spokesman for Reynolds American ( RAI – news – people ) Inc., another top cigarette maker, did not return repeated phone calls or emails seeking comment.
The ballot initiative was filed by Jefferson City attorney Marc Ellinger, who in 2006 represented a group funded primarily by Reynolds that opposed an 80-cent per pack tax increase for all brands of cigarettes. That measure was narrowly defeated by voters.
Ellinger said his client had forbidden him from revealing its identity or discussing the current initiative.
It remains to be seen whether the initiative’s secretive sponsor actually will attempt to collect petition signatures to qualify for the 2012 ballot. The initiative was filed with the secretary of state’s office a day before the end of this year’s legislative session – suggesting its main purpose may be to put pressure on legislators to pass a law targeting the tobacco companies that weren’t part of the settlement.
Political consultant John Hancock, who worked on behalf of the failed 2006 ballot initiative, now is coordinating a group called Citizens to Stamp Out Cheap Cigarettes. He says the group has no financing and did not initiate the latest ballot proposal, though it does support it.
“Having the cheapest cigarettes in America is not something to be proud of,” Hancock said. “This approach is one of a number of mechanisms to address that concern.”

Menthol Cigarette Investigation to be Conducted by FDA

A menthol cigarette independent review is part of the Food and Drug Administration’s latest investigation into the public health impact of cigarettes.
The FDA said Monday that members of its Center for Tobacco Products will gather menthol studies and then submit its review to an external peer review panel next month. The cycle should be completed by fall of 2011, at which point the results of the review will be available for public comment.
The investigation is motivated by a report from the Tobacco Products Scientific Advisory Committee, who noted that the minty flavoring of menthols has led to an increase in smokers, particularly among teens, African Americans, and those with low incomes. The report also noted that while menthol cigarettes are harder to quit, smokers that choose menthol are not likely to be at a higher risk of disease or exposed to a greater number of toxins.
A ban or other restriction on the sale of flavored cigarettes would have the most impact on Lorillard Inc., whose Newport brand is the highest-selling menthol cigarette in the United States, with roughly 35 percent of the market.
Menthol cigarettes are one of the few growth areas in a shrinking cigarette market: the percentage of smokers using menthol brands grew from 31 percent in 2004 to 33.9 percent in 2008, according to a study by the federal Substance Abuse and Mental Health Services Administration, with the largest growth among younger smokers.
A tobacco industry report to the FDA conceded that all cigarettes are dangerous but says there’s no scientific basis for regulating menthols differently.

The FDA's Cigarette Pack Anti-Smoking Billboards

The new FDA regulations for cigarette packaging raises additional First Amendment issues to the extent that it is a case of compelledFDA cigarettes packs speech, as opposed to being one of prohibited speech. The case precedents in this area go back to the 1940s in purely political contexts as opposed to commercial speech.
In Minersville School District v. Gobitis, 310 U.S. 586 (1940), the Court upheld a school administrator’s decision to expel Jehovah’s Witness students who refused to salute the flag. Then, after a large public outcry, and the addition of two new Justices, the Court reversed that ruling in West Virginia v. Barnette, 319 U.S.624 (1943), with three of the Minersville majority reversing themselves. The Barnette ruling, however, did not go any further than finding an inconsistency between recognizing a right to speak one’s own mind and allowing public authorities to compel an individual to say what he does not believe.
Thirty-four years later, in Maynards v. New Hampshire, 430 U.S. 705(1977) the Court overturned the conviction of Jehovah’s witnesses who had covered over the state motto “Live free or die” on their license plates. Chief Justice Burger’s opinion chastised the state for compelling individuals to be “couriers for ideological messages” and “mobile billboards” for the state’s politically charged motto.
The First Amendment thus unquestionably prohibits the government from compelling any person to speak against their beliefs or interests as well as prohibiting the suppression of speech. Barnette and Maynards, however, involved purely political messages, but what about compelling commercial speech via regulation?
In R.J. Reynolds Tobacco Co. v. Shewry, 423 F.3rd 906 (2005),the Ninth Circuit Court of Appeals upheld a California statute that applied specific revenues obtained from the tobacco industry through a 25 cent per pack cigarette tax to fund anti-smoking advertisements that vilified the industry. The Court rejected Reynolds’ argument that this was unconstitutional as it compelled the company to speak against its interests by funding a message with which it strongly disagreed.
The Court of Appeals opinion in the R.J. Reynolds case relied on recent Supreme Court rulings that give broad discretion to the states as to how they spend tax revenues, including public information campaigns that target specific industries. The Supreme Court denied certiorari in 2006, thus letting the Ninth Circuit ruling stand. R.J. Reynolds Tobacco Co. v. Shewry, No. 05-867 (Feb. 21, 2006).
In R.J. Reynolds, the Court of Appeals tacitly recognized that spending money on advertising or public service messages was a form of protected speech, as has been made explicit by the Supreme Court’s 2010 ruling in Citizens United v. Federal Elections Commission, that upheld the right of corporate free speech in the form of spending money to influence public opinion and voters on political issues. The ruling in Citizens United has proven to be highly controversial in large measure because corporate “speech” via spending money can be done anonymously in political campaigns, a factor which by definition is not present in context of corporate packaging and advertising to sell products.
In the context of tobacco products, restrictions on advertising over broadcast media have been in place for decades. In Capitol Broadcasting Co. v. Mitchell, 404 U.S. 1000 (1972), the Supreme Court affirmed per curiam a ruling by the D.C. District Court, 333 F. Supp. 582 (1971) upholding a federal law, 15 U.S.C. Sect. 1335, that barred cigarette ads on television. In a later case, Pittsburgh Press co. v. Pittsburgh Commission on Human Relations, 413 U.s. 376 (1973), a case involving censorship of print media, Justice Powell’s majority opinion distinguished the Court’s summary ruling in Capitol Broadcasting on the basis that it applied only to restricting commercial messages on broadcast media, not in print media..
Similarly, health warning labels on cigarette packages have been required since 1965 under the Cigarette Label and Warning Act. The tobacco industry did not appeal from that legislation at the time, deciding instead to accept the modest factual message about health risks that the law required on all cigarette packs. They were confident, to be sure, that the warnings would not deter many of their older existing customers, hard core nicotine addicts, while they just might insulate the industry from liability for smoking related diseases to people who took up the habit after the warnings were printed on the packages.
Not all inroads on the tobacco industry’s commercial free speech rights have been upheld under the First Amendment or acquiesed to by the manufacturers. In Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001), the Supreme Court struck down a series of Massachusetts regulations that restricted the advertising of tobacco products. A threshold issue under the Supremacy Clause of Article VI might have sufficed to render the state regulations invalid, as against exclusive federal jurisdiction under statute, but the Court went on to analyze the regulations as limiting commercial speech under the First Amendment as well.
On the First Amendment issue, the Court in Lorillard held that the Commonwealth failed to meet its burden to show that a ban on outdoor advertisement of smokeless tobacco and cigars was not more extensive than necessary to advance the admittedly valid state interest in curbing underage tobacco use. That ruling thus turned on the fourth criterion of Central Hudson, where the ads in question promoted a lawful activity and were not misleading, while the state’s interest was admittedly substantial and the regulation would directly advance that interest.
That same criterion will be the crux of any appeal by the tobacco industry from the FDA’s new requirement for more prominent and more graphic labels on cigarette packs. The rationale for the 1965 law was that tobacco advertisements showing healthy vigorous people smoking cigarettes was deceptive, which would trigger the first criterion under Central Hudson, and the health warning labels were conceived as a legitimate way to achieve a more balanced presentation to the consumer.
The presentation became even more balanced in 1971 when 15 U.S.C. Sect. 1335 took effect, banning cigarette ads on broadcast media. Still cigarettes and other tobacco products remained legal, while public awareness of the serious health hazards of smoking has steadily increased. Nobody today would buy into the Old Gold cigarettes slogan “Not a cough in a carload,” even if the tobacco companies had the effrontery to resume that kind of overtly deceptive advertising.
So, the question again devolves to the fourth criterion under Central Hudson, whether the new FDA regulations that compel cigarette manufacturers to put graphic images on their product at the point of sale are valid under the First Amendment, or whether they substantially exceed what is reasonable and necessary to serve the government’s interest in the issue. That question requires a closer look at what the government’s interest is in this context.
The specific rationale for the Cigarette Label & Warning Act of 1965 was to counter what was, with good reason, then considered to be deceptive advertisement by the tobacco industry. Today, however, cigarette advertising has been severely restricted to print media, and the content is not overtly deceptive as some of the older ads which made claims like “more doctors recommend smoking Camels than any other cigarette.”
There is a real public health issue involved with both smoking and smokeless tobacco use, but if the government’s purpose is to coerce or scare people into quitting cigarettes, a simpler way would be to ban cigarettes and tobacco products outright, without getting into any thorny free speech issues under the First Amendment.
There are, beyond any doubt, serious health issues involved with smoking, but despite widespread if not universal recognition of those issues, many people continue to smoke cigarettes. Many of them are addicted, and many others smoke for reasons of vanity, to create and maintain for themselves an image of presumed sophistication or glamour that current cigarette ads in print seek to foster.
That kind of image appeal, however, is materially different from the blatantly deceptive health claims of older cigarette advertising. In the first place, purely subjective considerations of beauty, glamour and sophistication are in the eye of the beholder, in marked contrast with objectively diagnosed medical conditions like lung cancer, emphysema or heart disease. If a significant number of consumers believe smoking is hip, glamorous, macho or sophisticated, even with the help of cigarette ads in addition to Hollywood product placements, then it is in fact hip and glamorous despite the very real health concerns that obtain. For this reason, cigarette ads based on that kind of imagery cannnot be considered deceptive, especially where the packaging already contains accurate textual information about the health risks.
Again, everyone with a functioning brain in today’s America already knows that cigarettes cause cancer and other serious health problems, but despite such knowledge many of our fellow citizens continue to smoke. Nobody today is really being deceived by cigarette ads on any health issues, and therefore the pending regulations that require cigarette manufacturers to place graphic and grotesque imagery on their packaging is clearly excessive as a means to counter deceptive advertising or to promote any other govenmental interests sufficient to override the manufacturer’s right of free speech.
There is also the consumer’s right of free expression to be considered here. Many smokers have strong brand loyalties, and they willingly display the brightly colored packs as an element of their own public image and self-expression. The common image of a biker in white tee shirt with a box of Marlboro’s twisted into one of the sleeves as a macho man gesture is one example of this phenomenon. Individual smokers, the consumers being targeted by the FDA’s new regs, derive gratification from this that will clearly be impaired by being forced to carry the new grotesquely graphic packs or, in the alternative, quit smoking which is in fact the FDA’s actual agenda, as opposed to just providing full disclosure of health risks.
Here, too, many consumers will simply purchase metal cigarette boxes and discard the new packaging, or they will use plastic slip-on covers to conceal the new graphic packaging which they will find highly offensive rather than simply informational. The tobacco companies might also just look the othe way as plastic novelty manufacturers replicate older, Classic brand cigarettes to fit over and hide the new packaging, which would defeat the FDA’s purpose entirely. In that event, what will the smoke police do -enforce the tobacco companies’ trademark rights? Or will they arrest the smoker for covering up the new graphic cigarette pack with a legally purchased plastic replica of the old pack?
The FDA is undoubtedly concerned about younger people taking up smoking, in part based on printed cigarette ads that target them, e.g. Newport’s “alive with pleasure” slogan, but that is not deceptive where many people do find pleasure in smoking cigarettes. Besides, both parental smoking and peer pressure are equally strong if not stronger influences on teenage smoking than the printed cigarette ads per se. This is especially true where younger Americans are less likely to be reading magazines today as opposed to watching television where all tobacco advertising is banned.
There’s another factor that enters ironically into young people taking up the habit, and that is marijuana. Many young people today who smoke marijuana also take up cigarettes, not to appear macho, sophisticated or glamorous, but simply to provide cover for their pot smoking. The aroma of cigarette smoke is used to conceal or mask the smell of pot, especially the more aromatic cigarette brands that many younger people favor, and carrying a pack of cigarettes around provides cover for their carrying the matches or lighter they use for marijuana.
So, yes, it’s clear beyond any doubt that cigarette smoking causes serious health problems, but the same can be said of many other common practices, like drinking alcohol, driving automobiles, eating fatty foods and, most assuredly, enlisting in the armed services. Meanwhile, the government has not found it necessary to require breweries to put pictures of someone puking on every beer can, or require distillers to put pictures of a cirrhotic liver on every bottle of vodka.
Personally, I’d love to see Congress mandate that pictures of dead soldiers with heads blown off be prominently displayed on every Army recruiting poster in every post office all across America -which would really be truth in advertising. Seriously, though, to require that kind of graphic imagery on cigarette packs, but not on beer cans or automobile speedometers, raises an issue of equal protection under the 14th Amendment, as well as free speech under the First Amendment.
Just this past week, in Pliva v. Mensing, the Court held that generic drug manufacturers cannot be sued for failing to provide a stronger health risk warning on their packaging than is required for the equivalent brand-name product. The Pliva ruling was focused narrowly on the basis of pre-emption under the Article VI Supremacy Clause, and did not directly address the equal protection issue, but it clearly raises questions of equal protection and subsantive due process.
There are many products that, like cigarettes, carry a risk of causing serious illness or injury to consumers and/or the general public, and the government does indeed require printed warning labels on everything from beer to chain saws, but there’s been no talk of requiring graphic warnings like, say, gory pictures of lost limbs on every chain saw. So unless and until the government starts requiring graphic, repulsive imagery as part of the required warnings on all products that pose a danger of illness or injury, the new FDA cigarette warnings clearly do not meet the fourth criterion under Central Hudson, where the new cigarette labeling requirements are clearly excessive for the legitimate governmental purpose of providing information to assist the consumer in making an informed choice of whether to purchase the product.
The fact that such graphic warnings of well known health risks are not required on alcoholic beverages or, say, sugar products, is a tacit acknowledgment that the existing textual warnings are sufficient to the legitimate purpose of conveying information about the serious health risks involved with consuming alcohol or sugar, so the same must be true for smoking. Beer and candy ads are at least as “deceptive” as cigarette ads insofar as consumers are portrayed as vigorous and healthy young people, smiling and laughing as they enjoy the product. The extremely graphic imagery required on cigarette packs by the new regulations thus goes far beyond what is legitimately necessary for purely informational purposes, and enter the realm of social engineering -a blatant attempt to dissuade smokers from purchasing the product as opposed to merely providing accurate information as to the risks and then letting the individual decide.
Again, if the government wants people to stop smoking, Congress can pass a law prohibiting the sale and use of all tobacco products, based on clear and important considerations of public health. That, of course, would be utter folly, as was shown with Prohibition and is now playing out with Nixon’s interminable “War on Drugs.” The government also has every right to continue funding anti-smoking campaigns, even using cigarette tax money to do so as held in the R.J. Reynolds case.
But the new FDA rules go far beyond being an exercise of government discretion on how to spend tax revenues or providing meaningful product information to the consumer, and instead get into an area of coerced speech whereby the tobacco companies are required to carry the government’s anti-smoking message on their point of sale packaging. That is no different in principle from Justice Burger’s observation in the Maynard case that the state cannot compel anyone to create a billboard to carry the government’s ideological message.
This is where the new FDA regulations clearly violate the cigarette manufacturer’s First Amendment right of commercial free speech, and raise thorny issue of equal protection and substantive due process as well. The tobacco industry is being singled out for onerous regulation while other industries whose products create equally significant health or safety risks are not subjected to similar regulation.
Again, as held in the 44 Liquormart case, the government cannot single out the tobacco industry on the basis of relative social utility, simply because smoking is viewed by many as a “vice” in addition to being a health problem. Given the fact that such extremely graphic packaging images are not required for other products that pose serious health risks, the new FDA cigarette packaging regulations go far beyond the narrow informational purpose for which health and safety warnings are legitimately and reasonably imposed on a wide variety of consumer products across the board. Those new regulations are therefore excessive under the Central Hudson criteria, and thus violate the tobacco companies’ First Amendment right of commercial free speech.

Will smokers heed the warning on cigarette packaging?

Area health officials have mixed opinions on what impact graphic new warning labels on cigarette packs will have on smokers.tobacco warning
Last week, the Food and Drug Administration released nine new warning labels that include images of rotting and diseased teeth and gums and a man with a tracheotomy smoking.
The warning labels also must appear in advertisements and constitute 20 percent of an ad. Cigarette makers have until the fall of 2012 to comply.
“I’m not sure if they’re going to work or not,” said Vicki Ionno, New Philadelphia’s new health commissioner.
The FDA has done a good job of reducing smoking in the country, with the number of smokers declining from 40 percent in 1970 to less than 20 percent today. But in 2004, that decline stalled, and Ionno said the federal agency is looking for new methods to reduce smoking.
She noted that the number of smokers in Tuscarawas County is above the national average — 29.6 percent of county residents smoke, compared to 23.6 percent of Ohioans and 15 percent of Americans. She added that the county also has a higher incidence of obesity and alcohol use.
Ionno said smoking bans in Ohio have helped cut the number of smokers, as has the high cost of cigarettes. But she said it’s still not enough, as long as people are getting cancer or diseases brought on by secondhand smoke.
She said the New Philadelphia Health Department is available to help whenever it can for those who would like to stop smoking.
Dr. James Hubert, Tuscarawas County coroner and health commissioner, is hopeful that the labels might promote smoking cessation.
“They are a semishock type of notice of what can potentially happen with long-term tobacco use,” he said.
Though the images on the labels may be viewed as extremely, he noted that tobacco use is the cause of the greatest number of dollars spent on health care and a major reason for days of work lost by employers. “It affects our economy,” Hubert said.
Dr. Jennifer Ney, a pulmonologist at Trinity Hospital Twin City, said the new labels depict something that is truthful.
“The changes, while graphic, are needed and necessary to bring home the point that cigarette smoking is dangerous,” she said.
In her practice, Ney sees many smokers. In fact, at least 50 percent of her patients are smokers. “They have a false sense of security that it won’t happen to them,” she said, referring to the many health hazards associated with smoking.
She said there are no great screening tests for lung cancer. “By the time you have symptoms, the disease is pretty far advanced.”
Many smokers believe they are healthy because they don’t investigate to see if they are ill. “They’re like an ostrich with its hand in the sand,” she said. “They don’t look for the problem, so they don’t have to deal with it.”
Statistics have shown that the warnings have reduced smoking by 5 percent in other countries where they have been used. “Five percent is better than no percent,” Ney said.
By Jon Baker