Advertising, Compelled Speech, and the Law: Judge Strikes Down as Unconstitutional Graphic FDA Cigarette Warning Labels


By Matthew L. Schafer

On Wednesday, a United States federal judge held that government regulations requiring cigarette manufacturers to display large graphic warnings on cigarette cartons violated cigarette manufacturer’s rights under the First Amendment to the United States Constitution.  Judge Richard Leon, sitting in Washington, DC, sided with the manufacturers on all major points.

“As plaintiffs so aptly stated,” Leon wrote in his decision, “[A]lthough ‘the Government may engage in [ ] advocacy using its own voice[,] … it may not force others, such as Plaintiffs, to serve as its unwilling mouthpiece.'”

The cigarette manufacturers’ challenge came last year after the Food and Drug Administration (“FDA”) issued a final rule requiring tobacco companies to place warning labels on 50% of the front and back and 20% of the top of cigarette boxes.  The labels, among other things, include pictures of a baby surrounded by smoke and a person smoking a cigarette from a tracheotomy hole.

The FDA passed the regulation in response to a new congressional law called the 2009 Family Smoking Prevention and Tobacco Control Act.  The Act, in part, required that the United States Department of Health and Human Services “issue regulations that require color graphics depicting the negative health consequences of smoking.”

“Tobacco use is the leading cause of premature and preventable death in the United States, and claims almost half a million lives each year,” the FDA stated upon publishing the new rules.  “Requiring larger, more prominent warnings on cigarette packaging and advertisements is part of a broader strategy to help tobacco users quit and prevent young people from starting.”

In response to the new rules, which were to go into effect in September 2012, the cigarette manufacturers filed for a preliminary injunction late last year until the court could address the manufacturers’ arguments that the new rules violated their First Amendment rights.  The court granted that injunction.

The warning labels would require that colored labels be placed prominently on cigarette boxes.

In their motion for summary judgment, which the manufacturers filed this year, the plaintiffs argue that the new rules would unconstitutionally compel speech.  The plaintiffs further asserted that the labels did not fit into an existing exception to the compelled speech prohibition that allows the government to compel speech regarding factual information about commercial products.  As such, the plaintiffs concluded that the court should apply a strict form of judicial scrutiny to the law.

The government, on the other hand, argued that the court need only apply an intermediate form of scrutiny, which would increase the government’s chances of defeating the plaintiffs’ motion for summary judgment.

The court sided with the cigarette manufacturers.

“[W]here a statute ‘mandates speech that a speaker would not otherwise make,’ that statute ‘necessarily alters the content of the speech,” Leon wrote.  “As the Supreme Court itself has noted, this type of compelled speech is ‘presumptively unconstitutional.'”

The court first stated that the labels do not fall within any exceptions to the compelled speech rule because the labels “are not the type of purely factual and uncontroversial disclosures that are reviewable under this less stringent standard.”  The court stated, for example, that the label showing a body on an autopsy table “suggests that smoking leads to autopsies,” but there is no proof that that is the case.

Second, the court stated that the labels not only do not convey factual information about the dangers of smoking, but they were simply intended as a non-smoking advertising campaign on the part of the government.  Such compelled speech of a government message demanded strict scrutiny, a test that requires a compelling government interest and rules that are narrowly tailored to that interest, the court concluded.

Having decided which standard was appropriate, the court held that the rules failed strict scrutiny.

The government asserted that it had a compelling interest — “conveying to consumers generally, and adolescents in particular, the devastating consequences of smoking and nicotine addiction.”  The court, however, rejected this asserted compelling interest, stating instead that the record showed that the “[g]overnment’s actual purpose is not to inform or educate, but rather to advocate a change in behavior—specifically to encourage smoking cessation and to discourage potential new smokers from starting.”

Even if the government had a compelling interest, the court stated that the rules were not narrowly tailored, because alternatives that would not implicate the First Amendment existed.

“Although [having the government run its own advocacy campaign] might impose costs on the Government, ‘[c]itizens may not be compelled to forgo their [First Amendment] rights because officials … desire to save money,'” Leon wrote.

Having concluded that the government had no compelling interest in creating the rules and the rules were not narrowly tailored, it granted summary judgment in favor of the cigarette manufactures.

In response to the defeat, the Campaign for Tobacco-Free Kids, stated that Leon’s ruling “ignores decades of First Amendment precedent that support the right of the government to require strong warning labels to protect the public health.”  It further suggested that the Wednesday rule is “but one decision in a long legal battle that could end up before the U.S. Supreme Court.”


About Matthew L. Schafer

Matthew L. Schafer graduated from the University of Illinois in 2009 with a Bachelor of Science in Media Studies. He later attended Louisiana State University’s Manship School of Mass Communication where he earned a Masters of Mass Communication and Georgetown University Law Center where he earned his J.D.
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One Response to Advertising, Compelled Speech, and the Law: Judge Strikes Down as Unconstitutional Graphic FDA Cigarette Warning Labels

  1. Pingback: posts April 8, 2012 | All That Stuff

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