ANA Weighs Lawsuit With FDA Over Graphic Cigarette Labels

Trade Group: Government 'Can't Put Words in the Mouths of Advertisers'

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The Association of National Advertisers says it will fight the federal government's move to slap graphic new warning labels on cigarette packs.

"We are still discussing whether we go directly with a lawsuit or whether we will enter of friend-of -the-court filing," Dan Jaffe, ANA's exec VP for government relations, told Ad Age . But "we will certainly join with others in opposing this proposal." Mr. Jaffe added that the ANA thinks the proposal is unconstitutional because "the government on its own ... can't put words in the mouths of advertisers."

The nine warning labels, unveiled Tuesday by the Food and Drug Administration, are the biggest change to cigarette packaging in more than 25 years. By September 2012, all cigarettes made or sold in the U.S. must display the images, which include graphic depictions of diseased lungs, decaying lips and teeth, a man wearing an oxygen mask and a morgue scene with a message: "Smoking can kill you."

As defenders of advertising, it's no surprise that the ANA is fighting back, as fears swirl that the government might use the momentum to more aggressively target other categories, such as alcohol. Indeed, the ANA is already on record opposing the cigarette labels, filing comments in January after the initial proposal was first unveiled. The association has also sided with six tobacco companies that are challenging in federal court the underlying Tobacco Control Act, passed with bipartisan support in Congress and signed by President Barack Obama in 2009.

But while the ANA is compelled to defend what is sees as free-speech rights, the association has a tricky task of defending Big Tobacco, hardly a sympathetic industry. Former FDA Associate Commissioner Peter Pitts, who served during the Bush administration, said: "It would be very tough for me to defend anybody who believes an anti-tobacco campaign is somehow deleterious to the national good."

He added: "Any image that scares the bejesus out of people away from cigarettes is a step in the right direction. It's been clearly shown by research that visuals are more powerful than words."

The FDA says it chose the images from a list of 36 potential warnings after reviewing scientific literature and reviewing more than 1,700 comments from various interest groups. The warning will be accompanied by a smoking-cessation-help phone number.

"The Tobacco Control Act requires FDA to provide current and potential smokers with clear and truthful information about the risks of smoking -- these warnings do that ," FDA Commissioner Margaret Hamburg said in a statement.

But the ANA, in a blog post, said "this is precisely the kind of paternalism that the First Amendment does not permit."

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