How Grotesque Could Our Cigarette Labels Get? (Just Look at Australia's)

Who gets to decide just how disgusting our cigarette packages will be? Maybe the Supreme Court.

Tobacco companies took a kick-to-the-groin (that's official legal jargon) in Australia today, when the country's high court OK'd some of the world's most grotesque cigarette packages. Logos and branding are out. Plain sleeves and giant, nauseous warning labels are in, as you can see in the illustrations above, which were cooked up last year by the Aussie government.

(Just as an aside, I'd like to point out that the insane looking blinded eyeball was clearly cribbed from A Clockwork Orange.)

So hence forth, Philip Morris International and its brethren will have to pretty explicitly market their Australian wares as generic cancer sticks. Meanwhile, anti-tobacco advocates are hoping this will inspire copycat rules in other countries. Could America be next to jump on the bandwagon?

While it's not trying trying to ban fancy branding, the Food and Drug Administration is, in fact, already trying to make U.S. cigarette packs a lot more gag inducing. Whether it succeeds will depend largely on a pair of legal battles playing out in the courts, which are raising some interesting questions about corporate speech and the limits of federal regulation.

As part of the landmark tobacco regulation bill President Obama signed in 2009, Congress required cigarette makers to set aside half the space on each of their packages for health warnings. Then last June, the FDA unveiled its own set of nine gruesome labels designed to cover half of each cigarette package (examples to the right). They included graphic images of diseased lungs, a cadaver with staples running down its chest, and a smoker with tracheotomy hole, along with slogans such as "Smoking Can Kill You" and "Cigarettes Are Addictive.

Suffice to say, the tobacco companies have been fighting tooth and nail to avoid being forced to slap pictures of dead bodies onto their products. But so far, they've only had mixed success.

The industry notched a big win this past February, when a district court judge in Washington, D.C., ruled that the new labels were extreme enough to be considered a violation of the companies' First Amendment rights. Just as it protects us from being silenced, the constitution also protects us from being compelled to speak. And by turning cigarette packages into "mini-billboards" for an anti-smoking campaign, Judge Richard Leon reasoned that the government was violating the tobacco companies right to silence.

Of course, the government requires warning labels on all sorts of products, including cigarettes. But Leon ruled the graphic warnings didn't pass legal muster because they were designed to shock consumers out of buying tobacco, rather than simply educate them about the risks.The ruling is now on appeal.

The government pulled off its own legal victory in the dispute in a separate case before the U.S. Court of Appeals for the Sixth Circuit. In that suit, the tobacco companies didn't challenge the specific labels. Rather, it focused on the the law's basic requirements to cover packs with large color warnings.

In their decision, the judges waived off the companies' concerns about being forced into a PR campaign against their own products, writing that the labels "do not impose any restriction on Plaintiffs' dissemination of speech, nor do they touch upon Plaintiffs' core speech. Instead, the labels serve as disclaimers to the public regarding the incontestable health consequences of using tobacco."

So which is it? The issue is still a long way off. But it may well be up to Supreme Court to decide just how gross our cigarette packages will be.