Graphic Warnings About Teen Smoking
FDA Cigarette Ad

The Surgeon General, whose office in 1964 first announced the adverse health effects associated with smoking, has just issued a new report, “Preventing Tobacco Use Among Youth and Young Adults.”  The findings are unequivocal and frightening:  Smoking remains the number one cause of preventable disease and death in this country.  And it all starts, overwhelmingly, in the teen years.   Here is a link to the full report.  http://www.surgeongeneral.gov/library/preventing-youth-tobacco-use/index.html.

The report, easily the size of three volumes of the now defunct Encyclopedia Britannica, is exhaustively detailed in its analysis.  Among its key findings:

•             Smoking is an epidemic among young people.  Nearly one in four high school seniors is a smoker.

•             Every single day, nearly 4,000 young people (under age 18) smoke their first cigarette.  Of those, about 1,000 become daily smokers.  For every three young smokers, only one will quit (eventually) and one will die from a smoking-related disease.

•            Scientific evidence linking cigarette smoking and adverse health effects is stronger than ever.  Smoking restricts lung growth in young people.  It causes heart disease and lung cancer.  An estimated 443,000 Americans die each year from smoking-related causes, adding about $100 billion to our national health care tab.

It is difficult to read this latest report and wonder, “What is new about all this?”  Do we really need to be told, again, how dangerous smoking is?

Apparently, we do.  With all the information out there on the hazards of smoking, with the pages and pages of citations to the medical and scientific literature showing clear links between smoking and cancer and heart disease and a laundry list of other diseases and medical problems, with all that, one would hope the number of smokers would be shrinking rather than growing.  Something must explain all of the people still smoking, all of the young people picking up this nasty, addicting, life-threatening –yet perfectly legal – drug.

Chapter 5 of the Surgeon General’s Report, “The Tobacco Industry’s Influences on the Use of Tobacco Among Youth,” provides some insight into that special something:  Tobacco industry advertising.

The Surgeon General found that the tobacco industry spends a fortune to market its products, roughly $10 billion per year (for 2008, the most recent year available.)  That already astronomical figure doesn’t even include another $550 million spent promoting smokeless tobacco products.  According to Assistant Secretary of Health Howard Koh, who wrote one of the introductions to the report, one half of all movies for children under 13 feature scenes of tobacco use.  Cigarette messaging permeates magazines, TV, and the internet.

Regarding tobacco industry advertising, the Surgeon General noted:

Tobacco companies have long argued that their marketing efforts do not increase the overall demand for tobacco products and have no impact on the initiation of tobacco use among young people; rather, they argue, they are competing with other companies for market share.  In contrast, the weight of evidence from extensive and increasingly sophisticated research conducted over the past few decades shows that the industry’s marketing activities have been a key factor in leading young people to take up tobacco, keeping some users from quitting, and achieving greater consumption among users.  Report at 487.

The 1971 ban on cigarette advertising on broadcast media and the 1998 Master Settlement Agreement have not slowed the flow of money into tobacco product promotion.   The Surgeon General clearly links these dollars to adolescents and young adults starting to use tobacco.   This causal link – more advertising equals more smokers – makes perfect sense.  After all, the tobacco companies would not be spending billions of dollars on promotion if they did not believe the money was well spent.

Summarizing the findings contained in government documents and in numerous scientific studies on the effects of advertising on smoking habits, the Surgeon General reported, “Tobacco companies recruit new smokers, and their advertising campaigns appeal to the aspirations of adolescents (most smokers start as adolescents or even earlier) . . . Advertising fulfills many of the aspirations of adolescents and children by effectively using themes of independence, liberation, attractiveness, adventurousness, sophistication, glamour, athleticism, social acceptability and inclusion, sexual attractiveness, thinness, popularity, rebelliousness, and being ‘cool.’”  Report at 508.

An important element of tobacco company promotion, not surprisingly, is the cigarette packaging.  Citing to the tobacco industry’s own analyses, the Surgeon General found that brand images, as depicted on cigarette packages, were particularly effective in appealing to young smokers.  Report at 530.  Cigarette consumers are not motivated nearly so much by taste differences, as by different perceptions of the images associated with particular brands.  The packaging has a lot to do with the shaping and influencing of these images.

Packaging strategies also have other subtle but important influences.  For example, company research found that packaging cigarettes in smaller, more compact containers – such as a pack of 10, rather than 20 cigarettes – appealed to younger smokers who were especially sensitive to cigarette pricing.

Promotion of cigarette smoking in the media, such as Hollywood movies, is nothing new.  Advertising in movies and in other media became more sophisticated in the 1970s with the advent of product placement agencies.  Although the extent of smoking in movies is down, these images are still prevalent in media to which young people are exposed.  The Surgeon General concluded that the “evidence is sufficient to conclude that there is a causal relationship between depictions of smoking in the movies and the initiation of smoking among young people.”  Report at 602.

OK, so what to do about all this?  Smoking kills.  The cost in human lives and in health care dollars is enormous.  Overwhelmingly, smoking starts with young people.  The tobacco companies spend billions of dollars a year to promote smoking and especially to target new recruits, our youth.

The last chapter of the Surgeon General’s report focuses on measures to prevent smoking among young people.   The Report discusses a number of measures, such as increased cigarette taxes, regulatory limitations on adolescent access to cigarettes, and advertising bans.  Let’s look at just one, albeit the one for which the Surgeon General is probably best known:  cigarette package warnings.  Package warnings date back to 1966, following the very first Surgeon General’s report on smoking.  But this Surgeon General, Dr. Regina Benjamin, finds that package warnings are not having a meaningful deterrent effect on young people.  Report at 715.

Studies show that the size of the warnings on the package influences the effectiveness.  So does the location of the warning.  If the warning is more visual, that also enhances the impact of the warning.   The Report shows a photo of a pack of Camel cigarettes with the warnings used in Canada.  The entire top half of the front of the package features an open mouth with disgusting brown teeth and the warning, “Cigarettes Cause Mouth Diseases.”  Underneath that, it reads, “Cigarette smoke causes oral cancer, gum diseases and tooth loss.”  Pretty powerful stuff.  And the Report cites research showing that these kinds of warnings are indeed more effective.

That brings us to the Family Smoking Prevention and Tobacco Control Act, passed by Congress and signed by President Obama in June 2009.  The Act, which was supported by the American Cancer Society and the American Heart Association, focused, among other things, on giving the FDA greater authority to regulate the content, marketing and sale of tobacco products.  For example, the Act imposed a requirement that companies disclose the actual ingredients in cigarettes.  Cigarettes with flavors, such as clove, cinnamon and fruit (but not menthol) were banned, because these had special appeal to younger smokers.

In addition, the new law required cigarette packages to feature new, prominent and more graphic warnings, of the sort that have been used in Canada and elsewhere for years.  Specifically, these full-color, graphic health warnings should take up the top half of the front and back of the package.  Before these new, more graphic warnings could be implemented, the tobacco companies took to the Courts, claiming that the new regulations infringed on the tobacco companies’ free speech rights under the First Amendment.

Yesterday, the U.S. Court of Appeals for the 6th Circuit upheld a Kentucky judge’s ruling that the new, more graphic warnings are indeed constitutional.  The tobacco companies had argued that such prominent warnings would overwhelm their own “speech” on the packaging and would lead to an overestimating of the risks associated with smoking.  The federal government countered that an information deficit still exists, most especially among young people and that there was a strong interest in protecting youth against the clear, scientifically undeniable perils of smoking.

The Court of Appeals noted that the tobacco companies’ “primary argument is that the use of such significant labels might dissuade certain smokers from buying their product by making it appear unhealthy or otherwise unattractive.  But this is, in some ways, the purpose of the labels – to provide truthful information regarding the health consequences of the product in order to decrease the use of tobacco by young people and dependence on tobacco.”  Here is a link to the appeals court opinion:  http://www.ca6.uscourts.gov/opinions.pdf/12a0076p-06.pdf.  (There is a lot more to this opinion; it is well worth a read.)

The decision is all the more important because the tobacco companies brought another challenge to the FDA’s authority to implement the Tobacco Control Act in a federal court in Washington, D.C.  The judge in that case sided with the tobacco companies.  Now that decision is on appeal to the Court of Appeals for the D.C. Circuit.  Will the 6th Circuit’s analysis be persuasive in how the D.C. Circuit decides the next challenge to graphic package warnings?  If not, there will be a conflict between these two federal appeals courts, raising the prospect of this dispute ending up in the Supreme Court.

For now, the 6th Circuit, abundantly backed up by the Surgeon General’s latest tome, gives some hope that the will of Congress, and President Obama, and the American Cancer Society and groups like the Campaign for Tobacco-Free Kids, the determination to protect the health of our youth will prevail over the interests of the tobacco companies.