On August 24, 2012, in R.J. Reynolds Tobacco Co. v. FDA, a divided panel of the D.C. Circuit Court of Appeals held that a provision of The Family Smoking Prevention and Tobacco Control Act violated the First Amendment. Signed by President Barack Obama on June 22, 2009, the Act purports to give the U.S. Food and Drug Administration (FDA) the authority to require that cigarette packages manufactured or sold in the United States contain textual warnings and color graphics depicting the negative health consequences of smoking.
Plaintiffs in this case, five tobacco companies, did not dispute Congress’s authority to require health warnings on cigarette packages, nor did they challenge the substance of any of the textual statements mandated by the Act. However, the tobacco companies contend that the graphic warnings go beyond the textual warnings and are admonitions from buying or using their products.
The only question before the D.C. Circuit Court of Appeals was whether the FDA’s promulgation of the graphic warning labels—which incorporate the textual warnings, a corresponding graphic image, and the “1-800-QUIT-NOW” cessation hotline number—violated the First Amendment.
Circuit Judge Brown writes, “The government can promote smoking cessation programs; can use shock, shame, and moral opprobrium to discourage people from becoming smokers; and can use its taxing and regulatory authority to make smoking economically prohibitive and socially onerous.” Additionally, “the government can certainly require that consumers be fully informed about the dangers of hazardous products.” Yet, the Court acknowledged “this case raises novel questions about the scope of the government’s authority to force the manufacturer of a product to go beyond making purely factual and accurate commercial disclosures and undermine its own economic interest.”
The government argued, and the Court agreed, that the graphic warnings were restrictions on commercial speech, which should be analyzed under an intermediate scrutiny standard established by the Supreme Court in Central Hudson Gas and Electric Corp. v. Public Service Commission.
Under Central Hudson, the government must first show that its asserted interest is “substantial.” If so, the Court must determine “whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.” The party seeking to uphold a restriction on commercial speech bears the burden of justifying it.
The FDA asserted that the government had a “substantial interest in reducing the number of Americans, particularly children and adolescents, who use cigarettes and other tobacco products in order to prevent the life-threatening health consequences associated with tobacco use.” However, the FDA failed to present any data showing that the graphic warnings would accomplish the agency’s stated objective of reducing smoking rates.
Although the FDA maintained the data was “suggestive” that large graphic warnings “may” reduce smoking consumption, the Court stated that the FDA could not satisfy its First Amendment burden with “mere speculation and conjecture,” and the graphic warnings would not pass constitutional muster under Central Hudson.
On October 9, 2012, the FDA filed a petition for rehearing and rehearing en banc with the D.C. Circuit Court of Appeals. The FDA now urges the court to agree with that panel dissent, which explained that the regulations are properly upheld under both the standards generally applicable to warnings and disclosures and those applicable to restrictions on commercial speech.
The panel dissent emphasized, and the FDA reiterates, that tobacco use is the leading preventable cause of death in the United States and causes or contributes to more deaths than AIDS, alcohol, car accidents, murder, suicide, drugs, and fires combined. The FDA argues that the use of graphics within cigarette health warnings directly advances Congress’s interest in effectively communicating the health risks of a highly addictive and lethal product in a market in which new consumers are predominantly children and adolescents.
On October 29, 2012, by request of the Court, the tobacco companies filed a response to the petition for rehearing and rehearing en banc. The Court has not yet rendered a judgment, but the tobacco companies anxiously await this decision, which could significantly affect how the companies advertise and run their businesses. Consumers will also be affected by this decision: for if the Court renders a judgment in favor of the FDA, cigarette packages could be transformed, and any number of products could be subject to regulations requiring pictorial warnings.
A recent article in the Mississippi Law Journal proposes an interesting scenario. The author asks the reader to imagine taking a trip to the grocery store and finding pictorial warning labels on junk foods like Oreos, Twinkies, or Cheetos. While the FDA may have an interest in warning consumers of the possible negative effects of these products, consumers must take some responsibility for their own diet and lifestyle. Placing pictorial warning labels on every potentially harmful product simply goes too far.
The article mentions several alternatives to requiring pictorial images on cigarette packages. Such alternatives include increasing taxation of tobacco products, banning tobacco use in public places, implementing consumer health and wellness education programs, and raising penalties for adolescent tobacco sales.
These alternatives could prove more effective in educating consumers than compelling tobacco companies to display pictorial images on packaging. Importantly, these alternatives would not infringe on the companies’ First Amendment commercial speech rights.
If the Court rules in favor of the FDA, any new legislation requiring pictorial images on product packaging, including products other than tobacco, would likely withstand First Amendment scrutiny. The Court’s decision in the weeks to come could prove more momentous than expected.