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AG Derek Schmidt: FDA requirement for graphic warnings on cigarette packages is constitutional

Release Date: Oct 23, 2020

TOPEKA – (October 23, 2020) – With smoking still the number one preventable killer in the United States, the Food and Drug Administration may lawfully require cigarette packages to contain graphic warnings about the health consequences of tobacco use, Kansas Attorney General Derek Schmidt has told a federal court.

Schmidt joined attorneys general from 27 states and the District of Columbia in filing a brief last week supporting the requirement. In March, the FDA issued the requirements to increase the public’s awareness of the serious health consequences of cigarette smoking.  Philip Morris, Inc., sued the FDA in May to block implementation of the new rules, claiming the requirements violate the company’s First Amendment free speech rights.

“Kansas long has fought against deceptive marketing and sale of cigarettes to protect the health of our residents, in particular our youth,” Schmidt said. “We believe the government has a compelling interest and responsibility to effectively inform the public of the dangers of potential long-term and deadly health risks of using these products.”

More than 400,000 Americans die from tobacco-related diseases annually, and more than 40 million Americans continue to smoke. Congress passed the Family Smoking Prevention and Tobacco Control Act in 2009, tasking the FDA with replacing text-only surgeon general warnings with images depicting the dangers of smoking. Philip Morris and other cigarette makers won an earlier lawsuit in 2013 to block the initial FDA plan.

In the new filing, the states urge the court to uphold the graphic images warnings, citing the government’s substantial interest in reinforcing consumer understanding of the dangers of smoking.

In 1998, Kansas joined attorneys general across the nation in entering into a Master Settlement Agreement with the major tobacco manufacturers that imposes significant restrictions on their marketing practices and prohibits advertising aimed at youth. This includes banning the companies from advertising tobacco products on TV shows, movies and other video content.

Despite the advertising ban, studies by the public health organization Truth Initiative found a high rate of tobacco imagery in the content of streamed videos that are popular with young viewers.  Earlier this month, Schmidt joined 42 other state and territory attorneys general in sending letters to five guilds of the creative community, asking the streaming industry to limit tobacco imagery in their video content. The creative guilds’ assistance is a critical component in an overall strategy to prevent the renormalization and glamorization of tobacco use, as well as youth vaping.

A copy of the brief supporting the FDA’s authority in Philip Morris USA Inc., et al v U.S. Food and Drug Administration, et al, can be found at https://bit.ly/31slpZj.

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