HHS 'Confident' That It Can Compel Cigarette Makers to Use Graphic Warning Labels

By Susan Jones | March 1, 2012 | 11:17 AM EST

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(CNSNews.com) - The Obama administration says it is "determined to do everything we can" to warn young people about the dangers of smoking, and that includes a requirement for tobacco companies to post very large warning labels on cigarette packages by September.

But on Wednesday, a federal judge in Washington ruled that the labels "violate the First Amendment by unconstitutionally compelling speech."

The nine warning labels show rotting teeth and gums, a man with a tracheotomy, and various other health scares.

Judge Richard Leon said the government can require tobacco companies to make “purely factual and uncontroversial” disclosures about the risks of their products -- but it can't compel them to make space for government advocacy:

“While the line between the constitutionally permissible dissemination of factual information and the impermissible expropriation of a company’s advertising space for Government advocacy can be frustratingly blurry, here the line seems quite clear,” Leon wrote.

On Thursday, President Obama's Health and Human Services Department -- which oversees the FDA -- issued a statement disagreeing with Judge Leon's ruling:

"This public health initiative will be an effective tool in our efforts to stop teenagers from starting (smoking) in the first place and taking up this deadly habit.  We are confident that efforts to stop these important warnings from going forward will ultimately fail."

As USA Today reported, the issue could end up at the U.S. Supreme Court, because Leon's decision conflicts with a January 2010 ruling by U.S. District Court Judge Joseph McKinley in Bowling Green, Ky., who upheld key provisions of the new law, including the warning label requirement.

Among other reasons, McKinley wrote that the government's goal "is not to stigmatize the use of tobacco products on the industry’s dime; it is to ensure that the health risk message is actually seen by consumers in the first instance."

The warnings are required under the Family Smoking Prevention and Tobacco Control Act, passed by Congress, and signed into law by President Obama on June 22, 2009. Obama himself is -- or was -- a smoker.

The law said all cigarette packages must carry one of the nine new warnings starting in September 2012.

The labels must cover the top half of the front and back of cigarette packages and 20 percent of cigarette advertisements, and they must contain color graphics depicting the negative health consequences of smoking.