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    UPDATE: Appeal of Graphic Cigarette Labels Heads to Court

    A three-judge panel is considering the constitutionality of the nine federally mandated warnings.

    WASHINGTON, D.C. -- The highly debated graphic cigarette warning labels took center stage again today as the Food and Drug Administration's (FDA) fight to keep the nine warnings alive headed to the U.S. Court of Appeals in Washington, D.C.

    According to a Legal Times blog post, Judges Janice Rogers Brown and Judith Rogers, and Senior Judge A. Raymond Randolph heard arguments from both sides today, but did not immediately rule on the appeal.

    U.S. Department of Justice Attorney Mark Stern, arguing for the FDA, said the graphic images are narrowly tailored to inform consumers about the dangers of smoking. He called the images accurate, the legal news outlet reported.

    "This didn't come out of the blue," Stern said, noting that other countries have adopted similar regulations.

    Judge Brown, however, said, "America is the only one that has a First Amendment to worry about," according to the blog posting.

    "I don't really understand where this stops. It seems to me that there is nothing that the government can't compel the seller of a disfavored product to put on their product if they think it's for the public good," Brown added.

    Stern also argued today that smokers do not fully understand tobacco's harmful effect on health. The images, he said, communicate the risk of smoking more effectively than text-only warnings do.

    To this, Judge Randolph responded that consumers might not understand the dangers of many things, like the dangers of chainsaws or climbing ladders, Legal Times reported. "People are not omniscient," he said. "People don't know everything."

    Jones Day litigation partner Noel Francisco, representing R.J. Reynolds in the matter, said the labels cross the line from fact-based to issue advocacy. The government is triggering a negative emotional reaction. The government, Francisco said, can trumpet an anti-smoking message all it wants. He argued the government cannot force tobacco companies to carry the message, the blog reported.

    Francisco also said the graphic labels take away one of the few remaining areas tobacco companies have to market their products.

    Early last month, the FDA filed an appeal of U.S. District Judge Richard Leon's ruling that struck down the new federally mandated warnings. The agency released the nine warnings this past June; they are to be featured on all cigarette packaging and advertising by Sept. 22, 2012. However, Leon's decision that the warning labels -- a combination of text and graphic images -- violate the First Amendment has stalled the implementation of that mandate.

    Leon's Feb. 29 ruling came in response to a lawsuit filed in August by several tobacco companies, including R.J. Reynolds, Lorillard Inc., Commonwealth Brands Inc. and Liggett Group LLC, as CSNews Online previously reported.

    "The Supreme Court has said that the government cannot manipulate speech in this way to try to put the thumb on the scales to get people to do what they want and not make their own choices in the marketplace," Dan Jaffe, of the Association of National Advertisers, told CBS News.

    However, anti-smoking advocates contend public health concerns outweigh free speech concerns.

    "It's time to have some counter advertising right on the side of the cigarette packages to give consumers a voice and to give some balance to the glamorization of tobacco," said Patrick Reynolds, of TobaccoFree.org.

    It is widely believed that this issue could find itself before the U.S. Supreme Court for a final ruling, which could take years.

     

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