Update: Court Rules that FDA’s Graphic Smoking Warning Labels Violate First Amendment

Mar 05, 2012   

On February 29, 2012, Judge Richard Leon of the United States District Court for the District of Columbia issued an Order finding that the FDAs new graphic cigarette warning labels are a violation of the First Amendment and therefore unconstitutional. A copy of the Courts opinion can be read here.

As we previously reported, on June 21, 2011, pursuant to the authority granted to it by the Family Smoking Prevention and Tobacco Control Act to regulate tobacco, the FDA issued a final rule that requires each cigarette package and advertisement to bear one of nine new textual warning statements and an accompanying graphic image (see FDAs approved images here).  Additionally, the rule required these warnings to appear on every pack of cigarettes sold in the US and in every cigarette advertisement starting no later than September 2012.

As we reported here,< on August 16, 2011, five tobacco companies filed a complaint against the U.S. Food and Drug Administration (FDA) in the U.S. District Court for the District of Columbia challenging the Agencys rule requiring new textual and graphic warning labels on cigarette packaging and advertisements. The five tobacco companies (R.J. Reynolds Tobacco Company, Lorillard Tobacco Company, Commonwealth Brands, Inc., Liggett Group LLC, and Santa Fe Natural Tobacco Company, Inc.) sought a declaratory judgment that the FDAs final rule violates the First Amendment and Administrative Procedure Act (APA), and declarative and injunctive relief that the new textual and graphic warnings not become effective until 15 months after FDA issues regulations “that are permissible under the United States Constitution and federal laws.”

On November 7, 2011, Judge Leon granted a preliminary injunction in favor of the five tobacco companies finding that the tobacco manufacturers had a substantial likelihood of success on the merits of their constitutional and APA challenges because the FDAs labeling requirements are likely violative of the First Amendment. Our complete report on the Courts preliminary injunction can be read here.

In its Complaint, the tobacco companies alleged that the requirement to place graphic images on its labels unconstitutionally compels speech. Generally speaking, compelled speech is presumptively unconstitutional and will only be upheld if it passes “strict scrutiny,” i.e.: 1) the government has a compelling interest it seeks to protect; and 2) the regulation is narrowly tailored to achieve that interest. However, as explained by the Court, narrow exceptions apply in the area of commercial speech. The government may require disclosure of only “purely factual and uncontroversial information” to protect consumers from “confusion or deception,” unless such a disclosure is “unjustified or unduly burdensome.” A lower level of scrutiny applies in cases where government- compelled speech meets this narrow exception. See generally Zauderer v. Office of Disciplinary Counsel of Sup. Ct. of Ohio 471 U.S. 626 (1985).

In granting the tobacco companies motion for summary judgment, the Court first determined that the FDAs rules did not meet the narrow exception for compelled commercial speech. The Court found that the images were not designed to protect consumers from confusion or deception. Rather, “they were crafted to evoke a strong emotional response calculated to provoke the viewer to quit or never start smoking.” Thus, the Court found that objective and purpose of the warnings were not the dissemination of purely factual and uncontroversial information. Therefore, strict scrutiny and not a lower, more deferential standard applied.

Here, when evaluating whether the FDAs labeling rule passed constitutional muster, just as the Court noted when it granted the tobacco companies preliminary injunction, the Court found that regardless of whether the governments asserted interests were compelling, the FDAs rule is not narrowly tailored to achieve such a purpose. The Court found that “the sheer size and display requirements for the graphic images,” (the top 50% of the front and back of all cigarette packages manufactured and distributed in the US), were not designed to achieve an informative purpose. Instead, the Court found that the dimensions were designed to promote a government sponsored anti-smoking agenda.

Furthermore, the Court found that the Government could achieve its purpose of educating the public on the risks of smoking by using several less restrictive and burdensome alternatives, each of which would not unconstitutionally compel speech. These alternatives include: 1) an increase in anti-smoking advertisements disseminated by the Government; 2) increases in cigarette taxes; and 3) improved efforts by the Government to prevent the unlawful sale of cigarettes to minors. Additionally, the Court found that less restrictive and burdensome alternatives existed for the proposed warnings themselves such as “reduc[tion] [of] space appropriated for the proposed Ëœwarnings to 20% of the packaging or require[ing] Ëœwarnings only on the front or back of the packages,” and using “graphics that convey[] only purely factual and uncontroversial information rather than gruesome images designed to disgust the consumer.”

In addition to finding the current FDA labeling rules unconstitutional, the Court also issued a permanent injunction enjoining the FDA from enforcing any textual and graphic warnings required by the Tobacco Control Act until 15 months after the issuance of new regulations which are compliant with the U.S. Constitution and federal law. Fuerst Ittleman will continue to monitor the FDAs regulation of tobacco products and advertising. For more information, please contact us at contact@fidjlaw.com