In August, the U.S. Food and Drug Administration proposed a rule to require 13 new warnings for cigarette packages and advertisements.
The rule would place images on tobacco materials that warn of risks like cancer or heart disease, which would help spread important information to the general public. Many countries have already required such “graphic warnings.”
And this isn’t the first time the FDA has attempted to require graphic warnings. In 2012, a similar effort was shot down by the D.C. Circuit Court, on the grounds that the required warnings violated the First Amendment.
As was the case in 2012, the proposal for new warnings, if finalized, will likely be challenged in court. And this could happen soon – the final rule is expected in March.
But this time, the requirement for warnings should survive constitutional scrutiny if challenged again on First Amendment grounds, and the warnings should be placed on all cigarette packages.
The controversy around graphic warnings reflects the tension between promoting public health by giving consumers the information necessary to make healthy choices and upholding the First Amendment.
Here are three reasons we believe these graphic warnings strike an appropriate balance between these policies, and it’s time for these graphic warnings to be adopted:
Graphic warnings are in the public’s best interest
Smoking is the leading cause of preventable death, responsible for more than 480,000 deaths per year in our country. Effective means of communicating the health effects of smoking are critical, and there is good evidence that robust warnings, and especially graphic warnings, increase the public’s knowledge about the risks of smoking.
Graphic warnings could serve as a major turning point in educating the population about the health effects of smoking and reducing tobacco use.
Also, a court’s decision on these graphic warnings has implications not only for the FDA’s efforts to improve warnings about cigarettes but also any public health effort to help consumers make informed choices by requiring industry to provide certain information.
This could include the FDA’s efforts to educate the public about the effects of newer tobacco technologies like e-cigarettes. Thanks largely to vaping, nicotine use is on the rise for American teenagers. This is a crucial juncture in helping prevent another generation of smokers from a variety of tobacco-related diseases and conditions and a time when health regulators will need all tools available to them, including educational tools.
Graphic warnings are facts
In 2012, the DC Circuit Court stated that the first set of graphics warnings were not “purely factual and uncontroversial information” – and so the court applied a heightened level of scrutiny to the FDA’s requirement. In our view, the new graphic warnings proposed last year should be viewed as entirely factual. They are tied to actual conditions and complications that stem from tobacco use.
The warnings would state that smoking causes various diseases and conditions including cancer, heart disease, diabetes, erectile dysfunction, and cataracts. These diseases and conditions have been studied and proven to be more common in smokers.
The proposed images are representative of the warnings’ text and also exclude those that the court specifically identified as “ideological” in 2012, such as a man wearing an “I QUIT” shirt.
Graphic warnings can work
Both in the United States and beyond, there is good evidence that graphic warnings on tobacco products can be effective.
Indeed, for this round of proposed warnings, the FDA extensively tested the images’ effectiveness in conveying facts about the consequences of smoking, demonstrating that they will work toward the FDA’s desired impact. Studies have also shown that strengthened cigarette-pack warnings are associated with increased knowledge, an increase in calls to quitlines, and decreased tobacco consumption.
These graphic warnings are a way to help ensure that crucial information about tobacco use is effectively communicated to consumers, helping to combat the leading preventable cause of cancer and cancer deaths in the United States.
Prof. Patricia J. Zettler, The Ohio State University, Comprehensive Cancer Center and the Drug Enforcement and Policy Center, Moritz College of Law. Dr. Theodore L. Wagener, Center for Tobacco Research, The Ohio State University Comprehensive Cancer Center and the Division of Medical Oncology, College of Medicine, and Dr. Y. Tony Yang, Center for Health Policy and Media Engagement at The George Washington University.