We have previously discussed the new labeling rules for cigarette packages and I have not hidden my criticism of the graphic images from both a legal and policy perspective. This afternoon, U.S. District Judge Richard Leon handed down a major decision granting an injunction of the rules — a move based on his belief that the cigarette makers are likely to succeed in blocking the new packaging rules.
The nine graphic images include such disgusting pictures as a smoker exhaling cigarette smoke through a tracheotomy hole in his throat and a cadaver on a table with post-autopsy chest staples. Leon held that ‘It is abundantly clear from viewing these images that the emotional response they were crafted to induce is calculated to provoke the viewer to quit, or never to start smoking — an objective wholly apart from disseminating purely factual and uncontroversial information.” He characterized the labels as a “mini-billboard” for the agency’s “obvious anti-smoking agenda.” I have stated the same concerns in the past — questioning whether such graphic labels would be used for any other products that the government disfavors in the future.
Leon draws a line between conveying information and advocating the rejection of a product:
Unfortunately for the Government, the evidence here overwhelmingly suggests that the Rule’s graphic-image requirements are not the type of purely factual and uncontroversial disclosures that are reviewable under this less stringent standard. Indeed, the fact alone that some of the graphic images here appear to be cartoons, and others appear to be digitally enhanced or manipulated, would seem to contravene the very definition of “purely factual.”That the images were unquestionably designed to evoke emotion – or, at the very least, that their efficacy was measured by their “salience,” which the FDA defines in large part as a viewer’s emotional reaction, see CompI. ~ 58 (citing 76
Fed. Reg. at 36,638-36,639) – further undercuts the Government’s argument that the images are purely factual and not controversial, see, e.g., Defs.’ Opp’n at 22-29. Moreover, it is abundantly clear from viewing these images that the emotional response they were crafted to induce is calculated to provoke the viewer to quit, or never to start, smoking: an objective wholly apart from disseminating purely factual and uncontroversial information. Thus, while the line between the constitutionally permissible dissemination of factual information and the impermissible expropriation of a company’s advertising space for Government advocacy can be frustratingly blurry, here – where these emotion-provoking images are coupled with text extolling consumers to call the phone number “1-800-QUIT” – the line seems quite clear.
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)
Judge Leon is clearly trying to appeal to that common sense distinction in this opinion. For free speech advocates, any opposition to smoking should not obscure the dangers of the government being able to compel speech, including images designed to deter people from buying a product.
The victory goes to the legal team for R.J. Reynolds Tobacco Co. of Winston-Salem, N.C., Lorillard Tobacco Co. of Greensboro, N.C., Commonwealth Brands Inc. of Bowling Green, Ky., Liggett Group of Mebane, N.C., and Santa Fe Natural Tobacco Co. of Santa Fe, N.M.
Here is the decision: Reynolds.Leon.Memorandum.