Sean Philpott: On cigarettes and free speech

Smoking remains the number one cause of preventable deaths in the US. Last year, nearly half a million people died of smoking-related illnesses like emphysema and lung cancer. That’s nearly one of every five deaths, a number that is greater than the number of deaths caused by AIDS, drug and alcohol use, motor vehicle injuries, suicides, and murders combined. Smoking also costs American taxpayers and businesses over $150 billion a year in terms of health care and lost productivity – that’s approximately $7 for every pack of cigarettes sold.

While smoking rates have dropped significantly over the past four decades, gains have been relatively modest in the last few years. Despite the well-known risks of smoking, despite the billions of dollars spent on public health efforts to reduce tobacco use, despite bans on smoking in public places, and despite the ever increasing cost of a pack of cigarettes, about 20% of American adults still light up.

There are a number of reasons that the war on smoking has become a stalemate over the past few years. For example, the war on fat has eclipsed the fight against big tobacco, with public health departments spending nearly twice as much on obesity reduction programs than smoking cessation programs. In fact, cash-strapped state governments have slashed smoking prevention programs in the past few years. Although the states will collect nearly $26 billion in revenue from the tobacco settlement and tobacco taxes this year, but spend less than 2% of that (about $500 million) on programs designed to help smokers quit. By contrast, the tobacco industry spends over $10 billion a year advertising their wares.

It is also likely that anti-government sentiment plays a role. Federal and state anti-smoking efforts are routinely branded as a “fascist” violation of individual civil liberties. The powerful tobacco industry takes advantage of this libertarian sentiment, spending millions of dollars on lobbyists in Washington and the various state capitals. Over the last few years, for example, these lobbyists defeated efforts by several state legislatures to give cities the power to regulate smoking in public. Finally, one of the most powerful weapons in the war against smoking – the use of anti-smoking images on cigarette packaging – remains unavailable.

Several countries – Great Britain, Australia, Canada, Brazil and India – require tobacco companies to include graphic photos of diseased lungs and hearts, damaged gums and teeth, and images of people dying from smoking-related diseases on every pack of cigarettes. Studies have shown that these images are remarkably effective. When these graphic labels were first introduced in Canada, for example, the number of people enrolling in smoking cessation programs jumped. Of those who joined these programs, the majority cited the new warning labels as the primary reason they wanted to quit smoking.

The Family Smoking Prevention and Tobacco Control Act of 2009 would have required tobacco companies in the US to include similarly graphic images on every pack of cigarettes by September 2012. Unfortunately, in late February the US District Court in the District of Columbia ruled that this requirement violated the tobacco industry’s right to free speech. This is regrettable, as numerous studies have shown that the current warnings on the side of cigarette packs are ineffective.

Anti-smoking efforts also took a second hit this very week, when another federal court held that New York City officials could not require stores that sell cigarettes to display similarly grotesque images of the adverse health effects of smoking. On Tuesday, the US Circuit Court of Appeals in Manhattan found that, under the Cigarette Labeling and Advertising Act of 1965, only the federal government had that power, a power that was apparently found to be unconstitutional just a few months prior.

These rulings do not completely forbid federal, state and local officials from using graphic imagery to deter smoking. For the past few months, the US Centers for Disease Control and Prevention have used such images in anti-smoking ads printed in newspapers and magazines, shown on television, and posted on the Internet. This campaign appears to be somewhat successful, as calls to a CDC-run smoking cessation hotline have doubled since the ads first began to air. Compared to the effectiveness of graphic package labels, however, the impact of these anti-smoking campaigns appears to be muted.

Surprisingly, I agree with the argument that tobacco companies have a right to free speech, even when that right seems to take precedence over the health and safety of the public. I also agree that Americans also have some degree of personal responsibility for smoking. What I do not believe, however, that that right to free speech should preclude the government from putting limitations on cigarette advertising or from requiring that graphic warning images be printed on cigarette packs. Hopefully, the DC District opinion will be overturned on appeal. What we can also do is encourage our elected officials in Washington to overturn or amend the Cigarette Labeling and Advertising Act of 1965, giving states and cities like New York the right to place additional requirements and restrictions on stores that sell these dangerous wares.

A public health researcher and ethicist by training, Dr. Sean Philpott is a professor of bioethics at Union Graduate College in Schenectady, New York. He is also the Chair of the US Environmental Protection Agency’s Human Studies Review Board, which reviews all research involving human participants submitted to the EPA for regulatory purposes.

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