FDA Publishes Copyrighted Warnings for Cigarette Packages and Advertisements

Today, the Food and Drug Administration published its final rule on Required Warnings for Cigarette Packages and Advertisements, 76 Fed. Reg. 36628 (June 22, 2011). In general, the FDA opted for a shock-and-awe approach by requiring graphic images with accompanying warning statements on cigarette packaging.

Currently, cigarette packages must bear the following required warnings:

SURGEON GENERAL’S WARNING: Smoking Causes Lung Cancer, Heart Disease, Emphysema, And May Complicate Pregnancy.

SURGEON GENERAL’S WARNING: Quitting Smoking Now Greatly Reduces Serious Risks to Your Health.

SURGEON GENERAL’S WARNING: Smoking By Pregnant Women May Result in Fetal Injury, Premature Birth, And Low Birth Weight.

SURGEON GENERAL’S WARNING: Cigarette Smoke Contains Carbon Monoxide.

Next year, cigarette packages and advertisements must include these new health warnings:

If the FDA was truly opting for the gruesome approach, I wonder why they selected a photo of a live child, but a cartoon depiction of a baby. Of course, the FDA is hoping that present and future smokers will cower from the wicked weed in face of these warnings. But, if Fear Factor has taught us anything, it’s only gross the first time around. If you are in the shock business, you have to keep upping the stakes or else fear becomes no factor. So, maybe the 2013 package will include a corpse with an open chest, instead of the closed chest.

However, what really caught my attention was not the stark photos, but the “© U.S. HHS” copyright notice on the cigarette warnings. On the FDA’s tobacco labeling webpage, the government states,

The United States government owns all rights in the required warnings, which may not be used, reproduced, displayed, modified, or distributed except for purposes of displaying them on cigarette packaging (including cartons) and in cigarette advertising as required by 21 CFR part 1141 or with the express written permission of FDA or as permitted under the Copyright Act.

I found this assertion to be odd since 17 U.S.C. § 105 generally precludes any work of the United States Government from copyright protection. Furthermore, copyright does not protect facts or short phrases and slogans. So, what part of “cigarettes are addictive” is copyrightable? I couldn’t find any FDA tobacco warning t-shirts for sale yet on CafePress, but I’m sure it’s just a timing issue at this point.