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Can new FDA graphic warning labels for tobacco pass a first amendment legal challenge?
Date:6/17/2013

WASHINGTON When the U.S. Food and Drug Administration (FDA) imposes new graphic warning labels for tobacco products, they can survive a First Amendment challenge if they depict health consequences and their effectiveness is supported by adequate scientific evidence, says a Georgetown University Medical Center public health expert and attorney.

Graphic tobacco warning labelswhich combine images with health warningsare a widely used tool for reducing tobacco use in other countries, but the tobacco industry argues they are unconstitutional in the United States.

In an analysis of legal and scientific issues for graphic warning labels published in the American Journal of Preventive Medicine, John Kraemer, JD, MPH, outlines how the courts will likely analyze graphic warnings and identifies what health evidence must be presented to survive a legal challenge. Kraemer is an assistant professor of health systems administration at Georgetown University School of Nursing & Health Studies and member of the O'Neill Institute for National and Global Health Law.

Despite the fact that smoking kills 443,00 Americans each year, Kraemer says, "The U.S. has some of the weakest tobacco warning labels in the world, and they haven't been updated in almost 30 years."

In 2009, Congress passed the Family Smoking Prevention and Control Act requiring graphic warning labels on tobacco products, giving the FDA authority to specify the images and text that must be included. The FDA issued nine graphic warnings in June 2011, but withdrew them after two federal appeals courts came to opposite conclusions about their constitutionality.

Though ambiguity exists over what constitutional standard would be applied in a legal challenge to the labels, Kraemer argues that it is possible for the FDA to meet the two most likely standards rational basis review and intermediate reviewwith the right scientific evidence.

Kraemer says the labels
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Contact: Karen Mallet
km463@georgetown.edu
Georgetown University Medical Center
Source:Eurekalert

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