This summer, the U.S. Food and Drug Administration unveiled graphic new cigarette warning labels that will be required to appear on packages starting next year. We talked to law professor Richard Daynard, the president of the School of Law’s Public Health Advocacy Institute and chair of its Tobacco Products Liability Project, about the effectiveness of warning labels and a lawsuit challenging the new labels’ legality.
Will the new warning labels be an effective smoking deterrent in the United States? How do they compare to past efforts to warn people about the dangers of smoking?
They are a dramatic improvement over the current labels, which studies show are not actually read by most smokers. The current warnings, even if read, make only cognitive statements, while the new warnings also make emotional statements. No one who thinks he or she can change consumer behavior by making only cognitive statements would last five minutes on Madison Avenue. It has been difficult to prove precisely how much deterrent effect large graphic warnings have because they are generally introduced along with other tobacco control measures, such as tax increases. But we know that when they appeared in Canada, some merchants devised sleeves to cover up the package images, an acknowledgement that they “turned off” consumers.
Other countries such as Canada and Uruguay have used graphic, even grisly, images for years. Why has the United States been slow to follow suit?
The tobacco industry, which used to have effective control of the Congress on tobacco issues, obtained legislation in 1965 that said that only Congress could dictate package warnings. Needless to say, the warnings imposed by a tame Congress were small, solely cognitive and rarely noticed by smokers. Industry lobbyists thwarted efforts to change this as recently as 2008, when White House officials under George W. Bush suggested he might veto legislation giving the Food and Drug Administration both authority and a mandate to design and require large pictorial warnings. But revelations from internal tobacco industry documents made public as a result of state tobacco litigation in the 1990s reduced the industry’s political influence, as did the gradual but steady decline in the proportion of Americans who smoke and the diversification of the industrial base in Southern states. Thus Congress finally passed the Family Smoking Prevention and Tobacco Control Act in 2009, and President Obama happily signed it.
Major tobacco companies have filed a federal lawsuit about the legality of the new labels. What is the likely outcome of such a suit?
It’s hard to see even the current Supreme Court — pro-business and heedless of precedent though they are — taking this lawsuit seriously. There is no question the warnings are now authorized by statute, so the only possible issue is whether they interfere with the tobacco industry’s First Amendment rights. But Congress has for more than 70 years limited stock issuers promotions of their offerings to a plain-vanilla, highly regulated prospectus, and Drano has, as long as I can remember, had a mandated skull and crossbones on it. Indeed, most deadly and addictive drugs are banned outright.