U.S. Appeals Court Upholds Block on Graphic Cigarette Warning Labels

Smoking is Bad. PERIOD.

A federal appeals court on Friday upheld a decision barring the federal government from requiring tobacco companies to put large graphic health warnings on cigarette packages to show that smoking can disfigure and even kill people.

In a 2-1 decision, the U.S. Court of Appeals in Washington 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.

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 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.

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, billboards and TV.

“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.

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 Company Inc.

Richmond, Va.-based Altria Group Inc., parent company of the nation’s largest cigarette maker, Philip Morris USA, which makes the top-selling Marlboro brand, is not a part of the lawsuit.

The case is separate from a lawsuit by several of the same tobacco companies over the 2009 Family Smoking Prevention and Tobacco Control Act, which cleared the way for the more graphic warning labels and other marketing restrictions. The law also allowed the FDA to limit nicotine and banned tobacco companies from sponsoring athletic or social events or giving away free samples or branded merchandise.

In March, a federal appeals court in Cincinnati ruled that the law was constitutional. The contradiction of the decisions could mean the case would be settled by the U.S. Supreme Court.

Is Romney a Realist or an Idealist?

Where I come from," Paul Ryan told a New Hampshire town-hall meeting audience the week before the Republican National Convention, "overseas ... means Lake Superior." It was a joke, and a self-deprecating one at that, a quality always to be welcomed in politicians. Ryan was talking about a substantial issue: the fact that Canada had lowered its corporate tax rate to 15%. But still, there were unfortunate echoes of Sarah Palin's citation of Alaska's proximity to Russia as a foreign policy credential. And it brought attention to a curious fact about the 2012 Republican ticket: Ryan and Mitt Romney have the least foreign-policy and national-security experience of any ticket, for either party, in the 10 presidential campaigns I've covered. (As Michael Cohen pointed out in Foreign Policy, they have the least overseas experience of any ticket since Thomas Dewey and Earl Warren in 1948.)

The New Hampshire event was a joint appearance by the two Republican candidates, and it was striking: apart from a passing reference by Romney to the need for American military strength, neither candidate mentioned foreign policy in his stump speech. It was also notable that on the day the Todd Akin "legitimate rape" controversy broke, neither candidate mentioned any of the social issues that so dominated the Republican primaries--but that's another story. Or maybe it isn't: when Romney finally was asked about foreign policy during the question-and-answer period, he struck a more moderate tone than he did during the primaries. His remarks about Afghanistan, Israel and Iran were reassuringly unexceptional; his criticism of the President was mild. His slouch toward the center proceeds apace.

Ryan tended to be more critical of Obama--and more naive. He criticized the President for removing troops in the midst of the Afghan fighting season, which sounds serious but actually reflects a strategic decision not to use force-intensive counterinsurgency tactics in the eastern sector of the country. He also was more pointed than Romney, on this day at least, in accusing Obama of pulling out of Afghanistan for domestic political reasons. By contrast, Romney sounded very much like the man he was running against: the goal, he said, was to transfer power from our military to the Afghans as quickly as possible and to be sure that terrorists don't retake control of the country and use it as a launching pad for attacks against the U.S.

On Israel, Romney said it was best to keep disagreements with friends private--a reference to Obama's public dispute with Prime Minister Benjamin Netanyahu over Israeli settlement expansion, an episode the President has told me he handled badly during his first year in office. On Iran, Romney said he was happy that "crippling sanctions" were finally being imposed, but he steered clear of the latest, bellicose neoconservative idea--that Congress should pass a resolution authorizing the use of force in Iran. Indeed, I imagine that the neocon subset of the Republican Party will be upset by the mildness of Romney's New Hampshire remarks and by the fact that Romney has selected the estimable foreign policy realist Robert Zoellick to lead his transition team's search for national security talent.


This is the essential foreign policy question for Romney: Will he be a realist on the model of George H.W. Bush, who was the most adept foreign policy President since Eisenhower, or will he follow the intemperate, ill-considered idealism of George W. Bush, especially during the Dick Cheney--dominated first term? In a way, neoconservatism is the Republican foreign policy equivalent of supply-side economics. It has been tried and failed. The aggressive aspects of the doctrine--which provided the intellectual rationale for the war in Iraq--seem a form of myopic neocolonialism now. And the vagaries of the Arab Spring have demolished the broad-brush neoconservative idealism of George W. Bush's "freedom agenda." The reality of today's world is doctrine-averse. Diplomacy and the use of force must be subtle, most often multilateral and attentive to the facts of a rapidly changing world rather than to some overweening ideology.

There is likely to be an immediate foreign policy challenge to both Romney and Obama this fall. The nuclear talks with Iran, recessed during the past month of Ramadan, are reaching a climax. There is an implicit deal on the table: Iran opens the doors to all its nuclear facilities, closes down its Qum operation and agrees to stop producing highly enriched uranium in return for the right to enrich uranium for civilian power plants. If Iran accepts this deal, what does Romney do? If Iran rejects this deal, what does Obama do? It's not impossible that foreign policy, an afterthought in the race so far, will move dramatically to center stage come October.

Should Voting Be Mandatory?

Before Election Day we can’t know who will win the presidency. But we can know with near certainty that voter turnout will be abysmal and that the results will be not so much a mandate as a skewed sampling of about half the electorate.

Many reforms could increase turnout, from same-day registration to voting on weekends. But the most basic is also the most appropriate: making voting mandatory. Here’s why.

Mandatory voting would make elections truly valid. “Protecting the integrity of our elections” is the rationale Republicans give for the cynically restrictive voter ID laws they’ve enacted in Pennsylvania and elsewhere. But if we truly cared about the integrity of elections, we should ensure that they reflect the will of all eligible voters.

Second, as William Galston of the Brookings Institution argues, it would temper the polarization of our politics. In today’s electorate, hardcore partisan believers are over-represented; independents and moderates are under-represented. If the full range of voters actually voted, our political leaders, who are exquisitely attuned followers, would go where the votes are: away from the extremes. And they would become more responsive to the younger, poorer and less educated Americans who don’t currently vote.

Third, mandatory voting would prompt more Americans to pay attention to the choices. Those of us who lament the decline of civic knowledge generally focus on the supply side of the equation: more civics education. A mandate would stimulate the demand side, motivating more voters to learn what they were voting on (just as a draft makes the drafted motivated to learn what they’d fight for).

There are many arguments against mandatory voting; each reflects a lack of faith in democracy itself. One says that increasing the number of uninformed voters will lead to worse policymaking. That presumes, however, that policymaking today sets a high-water mark of enlightenment. It also sets up a viciously antidemocratic circle: if you don’t vote you must be stupid and if you are stupid you mustn’t vote.

Another critique claims that requiring the vote devalues it, and that compelled voters will protest by voting carelessly. But in Australia, where voting became compulsory in 1924, that’s been a marginal issue. The existence of a mandate has made voting a meaningful shared national experience.

Some Republicans will oppose mandatory voting for the reason they now push voter IDs: to win. (Conventional wisdom says the more people who vote, the worse the GOP does). But if a tactic of disenfranchisement and electorate-amputation makes sense for the party (which is debatable), it is terrible for the country. As former director of the Office of Management and Budget Peter Orzsag has pointed out, we can’t know what the ultimate partisan impact would be. One day Republicans could benefit.

The most visceral critique is that mandating voting is just un-American. Yet jury duty, the draft, going to school, and taxpaying all have been compulsory without being called communist (OK, three out of four). At issue is what makes something American — and what makes liberty liberty. The Revolution and the framing of the Constitution were not about the right merely to be let alone or to do whatever one pleased. They were about our liberty to govern and represent ourselves. Core to that liberty is electing representatives and voting on public issues.

That is why the best reason for mandatory voting has nothing to do with today’s politics. It’s about redeeming the central promise of American citizenship. Generations marched, fought and died for the right to vote. The least we can do now is treat that right like a responsibility.