Packaging Cancer

by CHRISTOPHER BRAUCHLI

For thy sake tobacco, I would do anything but die.

— Charles Lamb, (1775-1834) A farewell to Tobacco

Money talks.  Frequently it finds its voice only when it is given to others.  Consider Senators Mitch McConnell (R.KY) and Richard Burr (R.N.C.).  Senator Burr, having received $534,000,  has the distinction of being the recipient of more money from cigarette companies than any other member of Congress according to statistics compiled by the non-partisan Center for Responsive Politics.  His colleague (and the minority leader of the senate) Mitch McConnell has received $456,000.  The money that cigarettes have paid the two men, as well as some of their colleagues, makes them understandably sensitive to the well-being of their donors and they have expressed their gratitude by letting Europe know that it can’t follow in Australia’s footsteps and impose restrictions on how its donors are portrayed to the public.  But first, a bit of history.

In August 2012 the High Court of Australia issued an opinion that was exceedingly unfriendly to the package in which the cigarette is delivered.   The court, depriving individual cigarettes of that which causes them to standout from their competitors, said all cigarettes had to be sold in uniform packages. Company logos can no longer be displayed on packages.  All printing on the packages must use identical fonts and the package must have a dark brown background. To add insult to injury, the Australian Court said graphic health warnings have to cover 90% of the back of the package and 70% of the front.  That ruling was especially distressing for the cigarette because it came just a few months after the United States Federal Court of Appeals for the 6th Circuit had approved  rules issued by the Food and Drug Administration that required graphic displays of warning images on cigarette packs.  It also approved the rule that required graphic warnings to be placed on the top half of the front and back of each pack. In its opinion the court said: “We can envision many graphic warnings that would constitute factual disclosures . . . . A non-exhaustive list of some would include a picture or drawing of a nonsmoker’s and smoker’s lungs displayed side by side; a picture of a doctor looking at an x-ray of either a smoker’s cancerous lungs or some other part of the body presenting a smoking-related condition; a picture or drawing of the internal anatomy of a person suffering from a smoking-related medical condition; a picture or drawing of a person suffering from a smoking-related medical condition.” Australia plus the 6th Circuit created an air of gloom among cigarettes that no amount of smoke could dispel.  The U.S. Circuit Court for the District of Columbia dispelled it.

Ten days after the Australia Court ruled, the D.C. Court declined to approve the graphic warnings the FDA had required. Among one of the more catchy images it refused to approve was a picture of a man with cigarette smoke coming out of the tracheotomy hole in his throat.  Saying that many “of the images chosen by FDA could be misinterpreted by consumers.” It suggested, as one example, that the tracheotomy image could be construed by the consumers as suggesting that receiving a tracheotomy “is a common consequence of smoking.”

Since two courts had arrived at differing conclusions it was widely assumed that the U.S. Supreme Court would weigh in and let the cigarette know which court got it right.  It was not to be.  On April 22, 2013, the Supreme Court let it be known it would not resolve the differences between the two Courts of Appeal. Although the domestic threat is at bay until the FDA comes up with new rules, the cigarette’s need for vigilance goes on and it is in Europe that it enlisted the aid of those it has supported.

In December 2012 the European Commission proposed significant restrictions on tobacco branding and flavoring.  On the theory that for a cigarette to be fully appreciated, it should taste like tobacco and not like peppermint, it banned flavorings such as menthol.   On the theory that cigarettes are harmful it said graphic   warnings on the front of the package that now take up 30% of the package must be increased to 75%. The rules also require that the packages include the kinds of graphic warnings favored by the 6th Circuit and not favored by the D.C. circuit.

On June 7, 2013, it was reported that Senators McConnell and Burr along with Senator Rand Paul (R. Ky.) and Kay Hagan (D. N.C.) had written to the European Union warning of dire consequences should the Union adopt the regulations on cigarette packaging it was proposing.  The Senators said the proposed regulations would violate international trade rules and adversely affect trade relations with the United States.  It’s good they explained.  Otherwise one might have thought it had to do with all the money the cigarette companies pay them in order to preserve their friendship.

Christopher Brauchli can be emailed at brauchli.56@post.harvard.edu.

Christopher Brauchli is an attorney in Boulder, Colorado.

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