In a move that one cannot help but suspect is strategically calculated, Big Tobacco has filed suit against the FDA for restricting their First Amendment rights of free speech. The Congress passed legislation this last summer that gives the FDA the ability to regulate tobacco products, including how the industry advertises (Title II; Section 201; Sections a & b) their products. Given the track record of the tobacco industry of putting profits before ethics I fully suspect that this suit will be used to stall implementation of the entire Family Smoking Prevention and Tobacco Control Act, using the First Amendment issue as a red herring.

According to the Wall Street Journal, “The [tobacco] companies object to such provisions as a requirement that cigarette makers expand the size of warning labels so that they cover the top half of the front and back of cigarette packs, and include graphic images such as diseased lungs. This change, they say, would leave manufacturers with only a small and often-obscured portion of a cigarette pack to print their own messages.”

The key part of this is the “…to print their own messages.” The tobacco industry has a long and storied history of misleading the public with their “messages.” A case in point is the marketing of light and ultra-light cigarettes a couple of decades ago. With this effort came nicotine and tar listings on the pack, which were completely inaccurate and gave smokers the idea that these products were less harmful than regular cigarettes. In truth the tobacco industry engineered the products so they passed faulty machine testing for nicotine and tar, but delivered the usual amount of nicotine and tar when smoked by people. Hundreds of thousands of American became sick and died as a result of ads that said things like, “Considering all I’d heard, I decided to either quit or smoke True. I smoke True.”

I am a former smoker. I smoked for almost 25 years before quitting at the age of 41. My father died of lung cancer and for the past 17 years I have worked to help smokers quit using clinically proven treatment approaches. Despite all this, I am not a fan of making cigarettes illegal. This didn’t work with the probation of alcohol in the 1920’s nor has it worked in the past 30 years with street drugs. It won’t work with cigarettes either.

Nevertheless, I am offended when the tobacco industry uses the First Amendment as their justification to continue their assault on the health and lives of the American public. The Courts have ruled that it is illegal to yell fire in a crowded theater because the risk to the public outweighs the right of free speech. Similarly the right of the Tobacco Industry to print their own misleading messages on a product that causes disease and death when used as directed by the manufacturer seems to fall into the same category.

The Tobacco Industry has a clear track record of misleading messages that are well documented. Case in point is their appearance before Congress in 1996 (it is important to remember that date) where they testified that they did not believe that nicotine was addictive. Guess what? Countless documents from their own internal meetings clearly show otherwise. Take the statement by W.L. Dunn, Jr in 1972, senior scientist at Philip Morris: “The majority of conferees would accept the proposition that nicotine is the active constituent of cigarette smoke…The cigarette should be conceived not as a product but as a package. The product is nicotine.”

Or, another statement by WL Dunn, again in 1972, intended for internal use only, “Think of the cigarette pack as a storage container for a day’s supply of nicotine…Think of the cigarette as a dispenser for a dose unit of nicotine…Think of a puff of smoke as the vehicle of nicotine…Smoke is beyond question the most optimized vehicle of nicotine and the cigarette the most optimized dispenser of smoke.”

Or, an internal memo from British American Tobacco as far back as 1964, “There seems no doubt that the ‘kick’ of a cigarette is due to the concentration of nicotine in the bloodstream…and this is a product of the quantity of nicotine in the smoke and the speed of transfer of that nicotine from the smoke to the bloodstream."

I could go on forever, but I think I made my point. Restricting tobacco package labels as the FDA has done is prudent and necessary. Let’s just hope the courts decide this way as well and let’s hope that the courts rule the FDA can proceed with other parts of the Family Smoking Prevention and Tobacco Control Act while this issue is being sorted out.