A picture may be worth a thousand words, but what will it cost tobacco companies?

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Consider this: Cigarette smoking causes an estimated 443,000 deaths every year and approximately 49,000 of those deaths are a result of exposure to secondhand smoke.  Lung cancer is the leading cause of cancer death among both men and women in the US.  In 2011, an estimated nineteen percent of American adults were cigarette smokers and nearly sixteen percent of high school students reported smoking cigarettes. 

These are just a few of the facts Congress was faced with when it decided to enact the Family Smoking Prevention and Tobacco Control Act (the Act) in June of 2009.  The Act gives the Food and Drug Administration (FDA) authority to regulate the manufacturing, distribution, and marketing of tobacco products.

The Act recognizes that tobacco products can be misleading in their marketing and advertising.

The Act addresses important issues that could affect the health of millions of Americans, particularly youth and misinformed adults.  According to the FDA, the Tobacco Control Act “recognizes that virtually all new users of tobacco products are under 18—the minimum legal age to purchase these products.  Many new users will become addicted before they are old enough to understand the risks and ultimately will die too young.”

The Act also acknowledges that, while it is legal for adults over the age of eighteen to purchase tobacco products, the products themselves can often be misleading.  Further, manufacturers may not accurately depict potential health risks.

In a nutshell, the Act requires face-to-face sales of tobacco and bans tobacco product sponsorship of sporting or entertainment events.  It also limits colors and designs that can be used on packaging and in advertising of tobacco products.  The big issue, however, is that tobacco companies will be required to cover the top fifty percent of the front and back panels of packaging with health warnings.

According to Section 201 of the Act, these warnings must be accompanied “by color graphics showing the negative health consequences of smoking cigarettes.”  Such graphics include pictures of diseased lungs, a body on an autopsy table, and a man blowing cigarette smoke out of a hole in his neck.  The graphics must be paired with strongly worded language, such as “smoking can kill you” or “tobacco smoke can harm your children.”

In 2012, the Sixth Circuit Court of Appeals upheld the FDA rule (pdf), holding that the required warnings “are reasonably related to the government’s interest in preventing consumer deception and are therefore constitutional.”  In April of this year, the tobacco companies appealed the Sixth Circuit decision, arguing that their First Amendment rights are being jeopardized and that being forced to place detailed graphics on their products is a violation of their right to free speech.

Five of the nation’s largest tobacco companies, including R.J. Reynolds, stated that the government telling private companies what “large, ugly, dominant illustrations they must print on their packages is an infringement upon basic American principles.”  R.J. Reynolds has said that the government-ordered images are “intended to elicit loathing, disgust and repulsion.”

The Supreme Court refused to hear the case and issued an order stating that the federal law should remain in place.

The Supreme Court of the United States, however, rejected the challenge, refusing to even hear the case.  The denial of the tobacco companies’ writ of certiorari effectively means that the rules stand as they are.

Although the Supreme Court hears only a small percentage of cases each year, according to the Association for Convenience and Fuel Retailing (NACS), “many experts had anticipated the Supreme Court would take this case in order to rectify the ‘split’ among federal courts.”

This split occurred last year when the U.S. Court of Appeals for the D.C. circuit heard a similar appeal.  The Court held that revising the labels of tobacco products had not been proven to reduce smoking rates and was a First Amendment violation.  The court ordered that the issue be sent back to the FDA for further study.  Because of this split in authority, the power originally granted the FDA under the Act is lessened.

It could take months or years before the FDA puts something into place regarding new graphic labels.

What happens next is almost completely up to the FDA. According to Jennifer Haliski, the FDA spokeswoman, new research will have to be conducted to create rules that are consistent with different courts’ rulings, but as of now, no timeline is set for developing these new graphic label guidelines.  Haliski says it could possibly take months or even years before something is put into place.

Regardless of the setbacks, the FDA remains pleased with the Supreme Court’s refusal to hear the appeal.  While  the Court did not disclose its reasoning behind the denial, the decision not to hear the case ultimately made a statement that tobacco laws need to be stricter.

Tobacco companies continue to present a compelling First Amendment argument.  Many worry that a dangerous precedent will be set by telling these companies that they must market and advertise in a manner that is very much against their own interests.  The main argument is that “there is a legal distinction between requiring labels that state facts and requiring illustrations that serve to actively advocate against the purchase of the product.”

Public health and safety are important, but so is free speech.

Although it may take time before federal laws restricting tobacco sales are actually put to use, several states are making their own efforts to steer people away from the use of tobacco products and warn them of the potential dangers.

On the same day the Supreme Court rejected tobacco companies’ challenge to the federal law, New York City’s Council announced a bill that will raise the legal age to buy tobacco from 18 to 21.  This would make New York City the first major city in the United States to raise the minimum age to buy tobacco-related products.  Smoking was banned in the city’s parks and beaches, as well as bars and restaurants, ten years ago.

North Carolina also banned smoking in hotels, restaurants, and bars as of January 2, 2010.  And some college campuses have banned smoking within a certain distance of school buildings.

These are changes that greatly impact the public, especially non-smokers, but they have very little impact on tobacco companies.  People likely will continue to smoke and purchase tobacco products, despite the inconveniences these laws may create.

The Act, on the other hand, will have a critical impact on tobacco companies. While it will help raise awareness of the dangers of tobacco use, it could also greatly restrict the free speech rights of these companies.  Public health and safety are important, but so is free speech. The FDA and the courts will have to seriously consider where the balance should be between these two important competing interests.