Opinion: Cigarettes: What’s different about scary warning labels for smokers?

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Several cigarette companies have filed suit against the federal government, claiming that newly approved graphic warning labels are an infringement on their freedom of speech. In this case, instead of throttling speech, the tobacco industry complains, the government is forcing speech in the form of large, sometimes colorful images that portray, for example, a man smoking through his tracheotomy tube or a diseased lung.

The lawsuit certainly raises legal issues worth debate. Contradictions abound, and on both sides. It’s more than a little strange to force an industry that creates and sells a legal product to then advertise against that very product. But then, in a far more subtle way, we do the same with pharmaceuticals; prescription drug ads are required to carry an exhaustive menu of warnings in small type. The question is whether failure to include warnings constitutes false advertising.

For that matter, cigarette packs have carried the small surgeon-general’s warnings since the 1960s. Manufacturers didn’t sue over those warnings on the understanding that the industry would not be regulated -- which it mostly wasn’t for decades, until the Family Smoking Prevention and Tobacco Control Act of 2009 placed tobacco under the regulatory authority of the Food and Drug Administration. Cigarette companies might try to argue that the act changed the boundaries of that tacit no-regulation agreement.

But that makes it hard for the companies to start claiming now that a bigger, better warning label violates their rights if a smaller one didn’t, especially since we’ve had both the law and the text warnings for well over a year. The real difference, of course, is that the small print warnings are ineffective at dissuading smokers or young people who are flirting with the deadly habit. The intentionally disturbing graphic warnings might. This leaves companies with the difficult-to-inhale argument that only effective labels violate free-speech rights, while ineffective ones don’t.

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--Karin Klein