Three Massachusetts pediatricians and groups representing pediatricians across the state and the country say the FDA is dragging its feet complying with a 2009 federal law requiring cigarette makers put graphic images of the effects of smoking on their products - and are hoping a lawsuit might spur some action.
The doctors, who include Dr. Jonathan Winickoff of Mass. General and Harvard Medical School, and the American Academy of Pediatrics - along with groups such as the American Cancer Society and the American Lung Association - acknowledge a federal appeals court ruled the FDA's initial effort to put the images on cigarettes violated the First Amendment.
But in a lawsuit filed yesterday in US District Court in Boston, the doctors and groups say the appeals court ruling only means the FDA should try other methods to comply with the 2009 law.
The decision invalidating the specific warning labels specified in the 2011 Rule in no way suggested that every rule mandating graphic warnings would be unconstitutional or that the FDA is without power to comply with its statutory obligation to promulgate constitutionally permissible graphic warning label requirements under Section 201. In fact, during the course of the litigation, the tobacco industry plaintiffs conceded that different graphic warnings label requirements could be constitutional.
The lawsuit says evidence both here and in countries that graphically show the effects of smoking on cigarette packs shows they can help ward off teen smoking:
In the course of his practice, Dr. Winickoff routinely counsels patients between the ages of 10 and 21 and their parents regarding the long-term health consequences of smoking. The attitudes of these patients about using tobacco products are greatly influenced by the pervasive advertising of tobacco products and the labeling of cigarette packs by manufacturers to make the pack convey positive information about the product. The nearly invisible warnings currently required on cigarette packs do little to inform young people of the true long-term consequences of smoking. The absence of graphic warnings on cigarette packs and in cigarette advertising impedes the effectiveness of Dr. Winickoff’s practice and causes him to expend additional resources to provide effective counseling. The presence of graphic warnings accurately depicting the long-term consequences of smoking would make Dr. Winickoff’s counseling more effective and would enable him to use available resources more effectively to promote the health of his patients.