The Food and Drug Administration (FDA) on Tuesday asked an appeals court to undo a lower court ruling that said graphic health labels were unconstitutional, violating tobacco companies' free-speech rights.

According to a report by Reuters, Mark Stern, a lawyer from the Justice Department representing the FDA, said the labels showing, for example, a man smoking through a hole in his throat were necessary to show the true risks of smoking, including addiction.
Congress passed a law in 2009 that gave the FDA broad powers to regulate the tobacco industry, including imposing the label regulation. The law requires colour warning labels big enough to cover the top 50 per cent of a cigarette pack's front and back panels, and the top 20 per cent of print advertisements and the FDA released nine new warnings in June 2011 to go into effect in September 2012.
R.J. Reynolds, Lorillard, Liggett Group, Commonwealth Brands, and Santa Fe Natural Tobacco challenged the rule, arguing it would force them to engage in anti-smoking advocacy against their own legal products. Noel Francisco, a lawyer with Jones Day in Washington, D.C., who represents the tobacco companies, said the labels went beyond simple facts about smoking, instead trying to disgust or revolt people about cigarettes.
U.S. District Judge Richard Leon sided with the tobacco companies in a February ruling, saying the warning labels were too big and the government could use other tools to deter smoking, such as raising taxes or using factual information on the labels rather than gruesome images.
One of three appeals court judges who heard the case on Tuesday also appeared to question whether the government was going too far in trying to warn people about smoking. "Could you have a text that says, 'Stop, if you buy this, you are a moron'?" asked Judge Janice Rogers Brown.
Judge A. Raymond Randolph wondered if the government could also place warning labels on automobile doors with gruesome images of car accidents to warn people about the risks of speeding. However, Randolph disagreed with the tobacco companies, saying there is no case that shows commercial disclosure should only provide information, not deter use of a product.
The judges will rule on the case later, but any decision is likely to be appealed further and could eventually reach the U.S. Supreme Court, especially as the tobacco law has led to divergent rulings in lower courts. (pi)