We have been following the constitutional challenges to the new cigarette advertising regulations requiring graphic images on packages. I have been highly critical of those images and agree with the constitutional and policy concerns raised by the regulations. Now we have two decisions — one from the Sixth Circuit and one from the D.C. district court — reaching opposing results on the constitutionality of regulations. The district court decision sets up the possibility of a split in the circuit with the appeal now going to the D.C. Circuit.

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. In our past discussions, we considered the murky line on protected speech in this area. 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.

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.” Leon drew 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, . . . – further undercuts the Government’s argument that the images are purely factual and not controversial,. . . 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.

The Sixth Circuit yesterday reached the opposite conclusion, though with a dissenting judge on the graphic image portion of the case. Judge Stranch held the rational basis test was satisfied. It is a well-reasoned decision given the relatively low standard set by the rational best test:

Faced with evidence that the current warnings ineffectively convey the risks of tobacco use and that most people do not understand the full risks, the Act’s new warnings are reasonably related to promoting greater public understanding of the risks. A warning that is not noticed, read, or understood by consumers does not serve its function. The new warnings rationally address these problems by being larger and including graphics.
Sorrell establishes that the above reasoning alone is enough to satisfy the rational-basis rule. As noted, Sorrell held that the required mercury disclosures satisfied the rule because “[i]t is probable that some mercury lamp purchasers, newly informed by the Vermont label, will properly dispose of [the lamps] and thereby reduce mercury pollution. By encouraging such changes in consumer behavior, the labeling requirement is rationally related to the state’s goal of reducing mercury contamination.” In concluding that it was probable that some consumers would change their behavior in response to the disclosures, Sorrell did not point to any evidence showing that some consumers would change; instead, it reasonably assumed they would based on common sense. See id. That sufficed. Id. We can similarly assume, based on common sense, that larger warnings incorporating graphics will better convey the risks of using tobacco to consumers. The reasonableness of this assumption is highlighted by the Plaintiffs’ own argument that the Act’s ban on using color or graphics in their tobacco advertising “eviscerates Plaintiffs’ ability to effectively communicate with adult tobacco consumers using advertising that captures their attention.” (First Br. at 4 n.2 (emphasis added)) If color and graphics are necessary for Plaintiffs to effectively communicate and capture the audience’s attention, then warnings using color and graphics should more effectively convey risks than do purely textual warnings. Plaintiffs essentially admitted this point by stating at oral argument that “color and imagery are the most effective way to get your ad noticed and communicate a message.” (Emphasis added.) Zauderer supports this assumption as well — “[t]he use of illustrations or pictures in advertisements serves important communicative functions: it attracts the attention of the audience to the advertiser’s message, and it may also serve to impart information directly.” Zauderer, 471 U.S. at 647. The warnings are therefore reasonably related to promoting greater understanding of tobacco-related risks.

Judge Clay dissented on the images in a strong opinion:

Where I part with the majority is on what I consider to be a constitutional flaw in the requirement for color graphic warning labels. Though the government attempts to analogize the graphic pictorial warnings of the type mandated by the Act to the extensive warnings imposed on over-the-counter drugs, such an analogy is not convincing. First, while the government mandates extensive textual warnings on drugs, it does not require color graphics. Secondly, drug warnings present purely factual information, with no subjective component. The requirement imposed by the FSPTCA—that a product manufacturer place a large scale color graphic on a product warning label—is simply unprecedented.
Although the government has demonstrated that an information deficit still exists among potential tobacco consumers, which may render warning-less tobacco products inherently deceptive, it has not adequately shown that the inclusion of color graphic warning labels is a properly or reasonably tailored response to address that harm. It appears, from the government’s own evidence, that the color graphic warning labels are intended to create a visceral reaction in the consumer, in order to make a consumer less emotionally likely to use or purchase a tobacco product.

The opinions below are well-researched and worth reading. This in my view is a close question and I cannot fault the majority for finding that the images are supported by existing precedent, which is ambiguous on the edges of the protections afforded to commercial speech. 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 two orders create one logical problem. In his final order, Judge Leon enjoined the FDA from enforcing the proposed graphic images and text warnings. Yet, the Sixth Circuit says that they may be enforced. The deadline is now approaching for the images to be placed on packages. It is hard to see how the FDA would risk to violate the district court order. This could prompt the FDA to ask for an expedited review in the D.C. Circuit. The odds still favor the FDA in such an appeal but it depends greatly on the panel selected for the appeal. If the D.C. Circuit were to affirm Leon, the case would present a strong claim for Supreme Court review.

Here are the two opinions:

Leon Opinion

Sixth Circuit Opinion