Why I’m Hoping Big Tobacco Wins in Court

The other night, my wife and I sat down to watch True Grit with Jeff Bridges, an event that we’d both been looking forward to with alacrity given that our schedules rarely permit 110 minutes of uninterrupted leisure time together. The film was a worthy nod to the original, incidentally, with an exceptional performance by 15-year-old Hailee Steinfeld as the protagonist Mattie Ross; unfortunately, the price of enjoying it (beyond the five bucks I paid to rent it, that is) was sitting through the 90-second anti-smoking ad that is now standard operating procedure for nearly any film that carries as much as a whiff of that universally maligned weed known as nicotiana tabacum, or more commonly, tobacco.

In 2009 half a dozen major movie studios—including Universal, Warner Bros. and Paramount Pictures—bowed to pressure from the attorneys general of more than 30 states and began including such public service announcements on DVDs of all movies rated G, PG or PG-13 that depict smoking. As a Paramount movie that’s rated PG-13 and features the grizzled one-eyed U.S. Marshal Rooster Cogburn struggling to roll Bull Durham one-handed while astride a horse, True Grit falls under that umbrella.

Setting aside the inherent offensiveness of being subjected to an ad of any kind on a DVD I had just paid for the privilege to view, the notion of a full-length commercial instructing me not to purchase and consume a fully legal American-made product got me thinking. How far should government go in protecting us from ourselves?

Later this month a federal court in Washington D.C. will consider that question when it hears an industry challenge to regulations that will require cigarette makers to include new graphics—some of them quite gruesome—on every single package of cigarettes sold in the United States.

The requirements are a component of the Family Smoking Prevention and Tobacco Control Act, which was signed into law in 2009, and among other things gives the Food and Drug Administration authority over the sale of tobacco products. The new labels—nine in total—were released in June and will be required to cover 50 percent of both the front and back of cigarette packages by September 2012. The images include photographic representations of diseased lungs and rotting teeth … genuinely gnarly stuff.

Last month, five tobacco companies sued the FDA to withdraw the labeling mandate. They argue that the advertisements violate their first amendment rights to market their products, that the cost of adhering to the guidelines will exceed government estimates, and that some of the graphics were manipulated to make them look scarier. (For instance, the companies contend a photo of a corpse with a torso-length scar is not a corpse at all, but an actor.)

“Never before in the United States have producers of a lawful product been required to use their own packaging and advertising to convey an emotionally-charged government message urging adult consumers to shun their products,” the companies wrote in the suit.

I know I’ll make few friends by admitting it, but I for one hope they win.

The government has gone to great lengths to educate consumers on the dangers of smoking and has made every effort to make cigarettes prohibitively expensive through taxes at both the federal and state level. It’s a justifiable endeavor. Thousands of people die every year from consuming tobacco products, and smoking is still the leading cause of preventable death in the U.S.

On the whole the campaign has been moderately successful. The number of American smokers has dropped by double digits since 1970. By any measure, that’s pretty significant progress. To the feds I say: “Congratulations on a job well done. You’ve given it your best shot; but for the two-out-of-ten people who still enjoy a cigarette now and then, it’s time to back off.”

Lest you cry hypocrisy that someone like myself who feverishly supports the regulation of industries that pollute our environment and knowingly endanger unwitting citizens, I am not against the regulation of tobacco … far from it, in fact. Nor do I disagree with the warning labels that have been on packs of cigarettes since 1966, or even the prohibition of smoking in most public places. (I’m not sold on bars.) But a line needs to be drawn somewhere.

We need to remember that unless Congress outlaws tobacco (which would be a miserable failure, as history has shown us), cigars and cigarettes remain legal products; and while the people who use them might not be expressing the best judgement, they should be able to do so without being being singled out for castigation and indignity.

Smokers already pay more than many can reasonably afford for the privilege to puff. Should they now have to shell out $7 to carry around a corpse in their pocket? If so, where do we draw the line? Should Big Macs carry images of obese children? Should vodka bottles depict fatty livers? And if the goal is to educate consumers about the hazards attached to the product they are buying, why not toss environmental damage into the mix? In that case gas pumps would display photos of oil-soaked gulls and the Niger Delta in flames, while every package of bacon would be required to carry an image of a toxic fecal sludge pond (miles of which are literally swallowing swaths of North Carolina, creating a stink so offensive that on bad days residents can’t leave their houses).

The point is, while consumer enlightenment is a necessary and noble endeavor for the federal government to undertake, injecting shame and shock into the equation is unjustifiably paternalistic. By forcing a smoker to flash a diseased lung for all the world to see every time he or she lights up, the FDA has crossed the line from education to humiliation. What’s more, it’s liable to backfire, as recent research confirms. A new study out in the Journal of Media Psychology finds that messages that contain both threatening and disgusting imagery cause a “defensive response” in viewers that makes them less likely to process or remember what they’ve seen.

In the interest of full disclosure (and in case you haven’t guessed it), I am what most would call a light smoker. That is, I consume on average three to four cigarettes a day. I am also a runner and cyclist and as I write this I am packing for a two-day, 200-mile relay across the state of New Hampshire. Needless to say, I won’t be smoking on that trip (that’s why the gods invented nicotine gum). I mention this not to defend my habit, or to arrogantly suggest that I am and will remain as healthy as I would if I were to quit, but to point out that smokers are a complex bunch, not a group of mindless addicts roaming from one 7-Eleven to the next looking for our next fix, helplessly trapped in the tarred net of Big Tobacco. Some of us could even be described as health conscious, even if we don’t always make the most healthy decisions.

For those of you who missed it: I have no sympathy for tobacco companies, or, for that matter, multinational corporations in general; and unlike some on the Right (as evidenced by last year’s Citizens United decision), I do not subscribe to the belief that corporations are entitled to the same constitutional rights as people. The tobacco companies argue that their rights are being violated by mandatory labeling; I argue that it is the rights of consumers that are at stake.

Writer and photographer Christopher Moraff is a news features correspondent for the Philadelphia Tribune and a contributing writer for the Chicago-based magazines Design Bureau and In These Times, where he serves on the board of editors.