Tobacco Companies File Free Speech Challenge To New Graphic Cigarette Labels

Four of the five largest U.S. tobacco companies have filed a free speech challenge to the new packaging for cigarettes. I have previously criticized the graphic images of corpses and diseased organs. If the case goes to the Supreme Court, it could resolve the long-standing debate over the scope of free speech rights held by corporations as opposed to individuals. In that sense, it could be the extension of the Citizen United case in adding elements of personhood to corporations in the free speech area.

The odds still run against the companies given the broad authority of the government in regulated areas. However, they have an interesting issue of the limits on the power of government to force lawful products to carry anti-product messages or images. While I strongly dislike smoking, I have always been bothered by this trend and concerned over what limits exist for the government. Can the government force disgusting images on any product that it disfavors or finds inimical to health?

The issue of corporate speech has long divided the free speech community. The Supreme Court has long adopted a “common sense distinction” between individual and commercial speech:

We have not discarded the “common-sense” distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech. To require a parity of constitutional protection for commercial and noncommercial speech alike could invite dilution, simply by a leveling process, of the force of the Amendment’s guarantee with respect to the latter kind of speech. Rather than subject the First Amendment to such a devitalization, we instead have afforded commercial speech a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values, while allowing modes of regulation that might be impermissible in the realm of noncommercial expression.

Ohralik v. Ohio State Bar Ass’n (1978)

This is a case that we will follow closely.

Jonathan Turley

34 thoughts on “Tobacco Companies File Free Speech Challenge To New Graphic Cigarette Labels”

  1. “She is fine now, but her medical bills (she was on Medicaid, thank goodness) were just under a million dollars.
    My point is that cancer is a very expensive illness to get.”


    Thank goodness there is such a thing as medicaid. However, you must realize that the people who oppose government involvement in health care look at your daughter’s problem as one to be borne by your family alone. To them if you don’t have the money or insurance to pay for it then too bad. To most people there is such a thing as common decency and a sense of community. To these people and their followers they feel no responsibility, or need to help those in need, except of course when it comes to them. The knowledge that in her dotage, Ayn Rand accepted both SS and Medicare displays this mindset graphically.

  2. There is one flaw in that study of health care costs over the lifetime of obese people and smokers. It does not take into consideration lost income and disability payments when the individual can no longer work. SSI pays out a huge amount to disabled smokers and persons with obesity related problems. In other words, it is not just direct cost for medical care alone, but ancillary costs as well. For example, instead of working and paying taxes, those end up being a drain on the system instead of being productive.

    Finally, I am not sure about the figures themselves without looking closer at the source material. I am at work and do not have time to search for those source data. I can give an anecdotal example of the real cost of a cancer patient. I just lost my 17 y/o grandson to cancer last March. He was first diagnosed in the fall of 2007. His medical bills are approximately a million dollars for those three and a half years.

    Another example: my 22 year old daughter was seven months old when she was diagnosed with a germ cell carcinoma in her lower back. She underwent extensive treatment until she was eight years old when she was pronounced in remission. She is fine now, but her medical bills (she was on Medicaid, thank goodness) were just under a million dollars.

    My point is that cancer is a very expensive illness to get.

  3. Sorry, I was on my phone when I posted that.

    Here’s one report based on computer modeling:

    Lifetime Medical Costs of Obesity: Prevention No Cure for Increasing Health Expenditure

    And, a summary from the NYT.

    The money grafs:

    The researchers found that from age 20 to 56, obese people racked up the most expensive health costs [When they are not Medicare’s problem — bonus points].But because both the smokers and the obese people died sooner than the healthy group, it cost less to treat them in the long run.

    Ultimately, the thin and healthy group cost the most, about $417,000, from age 20 on. The cost of care for obese people was $371,000, and for smokers, about $326,000.

    “Lung cancer is a cheap disease to treat because people don’t survive very long,” van Baal said. “But if they are old enough to get Alzheimer’s one day, they may survive longer and cost more.”

    Donuts and smokes for all!

  4. actually the data shows that it is cheaper to insure smokers, and the morbidly obese as well I believe, over their lifetimes since their lives are so much shorter. The last three years of most people’s lives tend to be the most expensive in terms of medical care.

  5. How about tossing in the helmet laws…….Now that is a contentious issue…To make them wear helmets and pays millions after a near fatal accident or let them ride free and not end up in a vegetative states in the event something goes wrong on the Motorcycle…Should a body on life support be placed on the Drivers Licenses or the side of the gas tank?

  6. This is a bad idea. OS and AY have it right on the fact that addicts could have real blood dripping from their cigarette cartons and it wouldn’t stop them from lighting up. This is a bad regulation too because it can be used to show that “do-gooders” go to extremes and this is not a battle we should fight to make the point that government regulation of cigarettes is needed.

    The real problem is that the cigarette companies have been using covert propaganda like have main characters in films smoke. This also shouldn’t be stopped in my opinion because it would invade the free speech rights of film makers, a dangerous precedent. I was a nicotine addict for many more years than I care to admit and only stopped when heart failure made it impossible to continue. My sources of inspiration were both my parents and my idolization of Humphrey Bogart. Both my parents died at age 54 and Bogart wasn’t much older than that when he died. Fighting addiction is not an easy battle and so far providing the facts on smoking’s health hazards have been the only way of reducing it. Adding nicotine to the “War on Drugs” would only make the tobacco companies richer.

  7. Bette Noir,
    You are absolutely correct. Mrs. OS is a retired oncology nurse and former Head Nurse on an oncology unit at a large medical center. We have seen it first hand and it is not pretty. And agree the care is very expensive. Smoking related cancers are one of the truly preventable diseases.

    Back in the 1920s, when Alton Ochsner was a medical student, his mentor called him in to see a case of lung cancer. The older doctor told him that he might go through his entire medical career and never see another case because it was so rare. That was before tobacco companies started packaging cigarettes in soldier’s rations and giving away free cigarettes to the public. And advertising heavily on the radio and using product placement in movies. Smoking became “cool,” thanks to movie stars like Humphrey Bogart.

    Dr. Ochsner was a pioneer in the war against smoking. His peers in the medical profession ridiculed him for his theories that smoking was a causative factor in lung cancer. Now the Ochsner Clinic in New Orleans is a major center for treating, among other things, lung cancer.

  8. K: I suspect the cost of caring for a patient through his terminal cancer event would more than negate the savings produced through a shortened life span.

    Bette Noir RN

  9. Kd, I hope that was snark.

    Actually, tobacco in particular costs the health care system a huge amount of money. That is why the tobacco lawsuits. The idea came from former Mississippi Attorney General Mike Moore, who posited the State had an interest in the matter because of the drain on the system and the taxpayers. The tobacco companies had used the defense that smoking was “voluntary” but the state could easily get around that defense tactic–the taxpayers did not “volunteer” for anything. The result was the huge tobacco lawsuit settlements paid to the states–that money was supposed to reimburse the states for smoking related Medicaid costs. IIRC, some Republican governors refused to allow their tobacco checks to be deposited or used.

  10. I think we should go in the opposite direction and encourage all these life-shortening habits in order to make social security, Medicare, and Medicaid more fiscally solvent.

  11. I knew a fellow who drank–a lot. He is now deceased from liver and heart disease, but this is an example of the power of an addiction. He was in the hospital for chest pain. He sneaked out of the hospital in his hospital gown, got his car keys and headed for the liquor store. On the way, he skidded on a patch of ice, rolling his car down an embankment. He was injured, and one of his eyes was knocked out, the eyeball outside the socket, hanging by the optic nerve and blood vessels. He continued walking in the freezing rain down to the liquor store. He went in and asked for a bottle of Old Crow.

    The clerk took a look at the barefoot man in a hospital gown, covered with blood, leaves and twigs, with his enucleated eyeball hanging down on his cheek. The now-traumatized clerk called the police, who came and took him back to the hospital. The man was really mad about not getting his liquor, cursing out the clerk and the police officers.

    I knew this guy because he was the father-in-law of one of my wife’s relatives. He did not care about anything, as long as he could feed his addiction.

  12. Its hypocrisy and evangelism rolled into one. People who smoke clearly know the dangers, the product is legal and the governments make revenue from its sale (none of which is earmarked to smoking cessation programs or products) and thehe effect on the “those about to smoke” group is made negligent but the natural youth rebellion function.
    Then there’s the veracity of OS’s points about the habituation factors causing smokers and non-smokers alike to eventually become inured. I see this all as more over the top zealotry from both the non-smoking evangelists and from the “corporations are people” crowds.

    My stand is that the pictures are as polluting as second smoke itself. Australia’s plain packaging seems a better idea to me.

  13. OS,

    That was what I was getting at…We like convience even if not convient or bad for us….Sunday, I went to the gas station to get a paper…it was a little before noon and 4 or 5 people were in line to buy beer/wine at 12….

    I already had my smokes….

  14. I come to this debate from another perspective. I know something about addiction and also about perception. First of all, the addict DOES NOT CARE! They already know all this stuff and smoke anyway. They live in a dreamworld where the “propaganda” is all lies and tobacco is not harmful. Go to a VA hospital and see some of the old vets holding cigarettes up to their tracheotomy tubes in order to inhale–because they have had mouth or throat cancer and can no longer smoke the regular way.

    Another problem is habituation. After a time, no one “sees” the warning. The great psychologist William James studied habituation and proved several things about it. The most important thing is that the brain becomes habituated to the same stimuli as a means of preventing brain overload. You can listen to a song several times, and then discover you no longer can focus on it all the way through without great effort. That is habituation.

    This whole campaign is a waste of time and money. And that has nothing to do with free speech. It has everything to do with what works and does not work.

  15. I do not see anything wrong with the packaging….Either you smoke or don’t…if you do smoke you know that they are bad for you…this is a result….of smoking…It is a choice….that is made to begin with to smoke or not…and of course…most kids want to fit in…so what do they do? Go along with the crowd….

    Take for instance…Drinking and Driving…Should those smashed up vehicles be removed….

    Should your utility company send warning notices informing you that if you drink this water it could be tainted with petro chemicals…..or at the gas pump…notifying you that purchasing this product enhances the chances of tainting ground and water supplies…

    How about the granular coffee creamers… should they have to put a label on the packing because the some of the ingredients are made with petroleum by products?


  16. Here in Australia our Government is legislating to have completely plain packaging for cigarette packs. This of course is met with howls of protest from the tobacco companies, which is the sure sign that anti-tobacco are on a winner.

    In your Reverse Ad Placement post, you wondered if TV like Jersey Shore was responsible for de-evolution of the species. The ever increasing reach of the craziness of corporate personhood decisions is the real enemy.

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