Mandatory Placement of Graphic Images on Cigarette Packaging Struck Down as Unconstitutional
Yamuna Bhaskaran | Bloomberg Law
Pursuant to authority granted under the Family Smoking Prevention and Tobacco Control Act (the Act), Congress authorized the U.S. Food and Drug Administration (FDA) to enact regulations aimed at the manufacture and sale of tobacco products. Under the Act, the top 50 percent of the front and back panels of cigarette packages and the top 20 percent of all printed cigarette advertising were required to carry new textual and graphic warnings. The textual warnings included phrases such as “Tobacco smoke can harm your children,” “Smoking can kill you,” and “Quitting smoking now greatly reduces serious risks to your health.”
On June 22, 2011, the FDA published a Final Rule setting out the nine new graphic images for display, consisting largely of staged color photographs, some of which the FDA admitted to enhancing or manipulating. The images, acknowledged to have been selected on the basis of their ability to elicit an emotional response from the viewer, included diseased lungs and lips, a male cadaver with chest staples indicating an autopsy, and a man wearing a t-shirt with a “no smoking” symbol and the words “I QUIT” on it. Another image was a stylized cartoon of a premature baby in an incubator. The packaging was also required to display “1-800-QUIT-NOW,” a phone number selected by the FDA for smoking cessation assistance.
Several tobacco companies filed suit in the U.S. District Court for the District of Columbia, claiming that the Rule infringed on their First Amendment rights by unconstitutionally compelling speech. Plaintiffs, who included three of the four largest tobacco manufacturers and the fifth-largest cigarette manufacturer in the United States, moved for summary judgment and a permanent injunction to prevent the regulations from taking effect later this year.
Standard of Scrutiny
The district court first answered the question of what standard of scrutiny was applicable. Generally, it is “presumptively unconstitutional” for the government to compel others to speak; however, there is an exception in the commercial speech context that justifies compelling the disclosure of “purely factual and uncontroversial information.” (Internal quotations omitted.) Under the U.S. Supreme Court’s opinion in Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626 (1985), a regulation compelling such speech would be upheld unless it was “unjustified or unduly burdensome.” While the government argued that this standard should apply, plaintiffs asked the Court to use the higher “strict scrutiny” standard, under which the Rule could only be upheld if it was “narrowly tailored to achieve a compelling government interest.” (Internal quotation omitted.)
The Court held that the Rule went beyond demanding the disclosure of facts, and therefore could not be subject to the lower standard of scrutiny set out in Zauderer. The evidence demonstrated that the purpose of the Rule was to discourage the use of tobacco products, “an objective wholly apart from disseminating purely factual and uncontroversial information.” Moreover, the images were “neither factual nor accurate,” and instead were designed to symbolize the harms of smoking, a “subjective and highly controversial message.” (Internal quotation omitted.)
First Amendment Violation
Applying the strict scrutiny standard, the Court challenged the government’s purported interest in informing the public about the dangers of smoking, concluding instead that its purpose was to discourage smoking and encourage smoking cessation. According to the Court, “[a]lthough an interest in informing or educating the public about the dangers of smoking might be compelling, an interest in simply advocating that the public not purchase a legal product is not.”
The Court held that the Rule was also not narrowly tailored. The size and display requirements were so onerous that they were clearly designed to discourage people from buying the product. Moreover, less restrictive alternatives existed that would have informed the public about the risks of smoking, such as having the government engage in its own anti-smoking campaign, reducing the space for the warnings to 20 percent of the packaging or to only one side of the packaging rather than both, using only factual and uncontroversial graphics, increasing cigarette taxes, and improving efforts to prevent minors from smoking. Furthermore, Congress did not consider the Act’s First Amendment implications, and therefore also did not consider narrowly tailoring the Act.
Because the Rule failed the strict scrutiny test and violated the First Amendment, the Court granted plaintiffs’ motion for summary judgment.
This document and any discussions set forth herein are for informational purposes only, and should not be construed as legal advice, which has to be addressed to particular facts and circumstances involved in any given situation. Review or use of the document and any discussions does not create an attorney-client relationship with the author or publisher. To the extent that this document may contain suggested provisions, they will require modification to suit a particular transaction, jurisdiction or situation. Please consult with an attorney with the appropriate level of experience if you have any questions. Any tax information contained in the document or discussions is not intended to be used, and cannot be used, for purposes of avoiding penalties imposed under the United States Internal Revenue Code. Any opinions expressed are those of the author. Bloomberg Finance L.P. and its affiliated entities do not take responsibility for the content in this document or discussions and do not make any representation or warranty as to their completeness or accuracy.
©2012 Bloomberg Finance L.P. All rights reserved. Bloomberg Law Reports ® is a registered trademark and service mark of Bloomberg Finance L.P.