But they have in Australia, as over the summer, the High Court of Australia upheld the constitutionality of graphic images on cigarette packaging, such as mouth ulcers, lung tumors and gangrenous limbs. Yummy.

That same month, here on this side of the world, the U.S. Circuit Court of Appeals for D.C. deemed similar images unconstitutional, thus delivering a blow to the FDA, which had hoped to mandate tobacco companies to add the graphic warnings to their packs of cigarettes.

How could two very similar laws have two very different outcomes? Well, as the New England Journal of Medicine  thoroughly outlines in this month’s issue, it all comes down to language. The court here found “that the mandated packaging violates cigarette companies’ right to free speech by compelling them to express antitobacco messages “on their own dime.””

Even though public health should be at the center of this debate, the manner in which it has been framed in order to work around what the U.S. Supreme Court defines as commercial speech–which also covers marketing among many other forms of discourse. “The Supreme Court’s commercial speech doctrine, and the increasingly exacting manner in which it’s been deployed, would ultimately determine the fate of this crucial public health measure.”

The FDA argued that graphic images were necessary to enhance consumers’ capacity to make choices, making them fully informed of smoking’s consequences. The debate was framed as one of consumer choice as opposed to public health.

Which was why the ruling went against them. The court found the graphic images are “unabashed attempts to evoke emotion (and perhaps embarrassment) and browbeat consumers into quitting” and violated the tobacco companies’ freedom of speech;

I guess it all comes down to semantics.

Read the entire article here.