The United States Court of Appeals for the District of Columbia has struck down the graphic warning images on cigarette packages in an important opinion on corporate speech rights. I have been a long critic of the images on both constitutional and policy grounds. Previously the Sixth Circuit rejected the same free speech claims.

The 2-1 panel opinion is written by Judge Janice Rogers Brown found in favor of R. J. Reynolds Tobacco Company.

While acknowledging the “novel questions” in the challenge, Brown wrote that government could not “mak[e] ‘every single pack of cigarettes in the country mini billboard’ for the government’s anti-smoking message.” Brown further noted that the FDA “has not provided a shred of evidence” showing that the graphic labels reduce smoking. That may come as a bit of a surprise to the FDA which has cited a variety of studies and experts. However, the companies presented arguments that studies actually show little or no effect on smoking.

The court offers an interesting discussion of the applicability of exceptions for purely factual or unprotected forms of speech under the two lines of case law under Zauderer and Central Hudson. The court notes that these images are not presenting facts but sending a message:

[M]any of the images chosen by FDA could be misinterpreted by consumers. For example, the image of a man smoking through a tracheotomy hole might be misinterpreted as suggesting that such a procedure is a common consequence of smoking—a more logical interpretation than FDA’s contention that it symbolizes “the addictive nature of cigarettes,” which requires significant extrapolation on the part of the consumers. Id. at 36,649. Moreover, the graphic warnings are not “purely” factual because—as FDA tacitly admits— they are primarily intended to evoke an emotional response, or, at most, shock the viewer into retaining the information in the text warning. . . .

In fact, many of the images do not convey any warning information at all, much less make an “accurate statement” about cigarettes. For example, the images of a woman crying, a small child, and the man wearing a T-shirt emblazoned with the words “I QUIT” do not offer any information about the health effects of smoking. And the “1-800-QUIT-NOW” number, when presented without any explanation about the services provided on the hotline, hardly sounds like an unbiased source of information. These inflammatory images and the provocatively-named hotline cannot rationally be viewed as pure attempts to convey information to consumers. They are unabashed attempts to evoke emotion (and perhaps embarrassment) and browbeat consumers into quitting.

Judge Judith Rogers wrote the dissenting opinion, supporting the government’s “interest of paramount importance in effectively conveying information about the health risks of smoking to adolescent would-be smokers and other consumers.”

The ruling vacates the agencies regulation under the Family Smoking Prevention and Tobacco Control Act allowing such graphic images, which have also been introduced in other countries. As the court notes, these countries include Australia, Belgium, Brazil, Brunei, Canada, Chile, Colombia, Cook Islands, Djibouti, Egypt, Hong Kong, India, Iran, Jordan, Latvia, Malaysia, Mauritius, Mexico, Mongolia, New Zealand, Pakistan, Panama, Paraguay, Peru, Romania, Singapore, Switzerland, Taiwan, Thailand, Turkey, United Kingdom, Uruguay, and Venezuela. Other countries are considering the labels including France, Guernsey, Honduras, Malta, Norway, the Philippines, and Spain. However, Brown wrote that “[i]t is worth noting that the constitutions of these countries do not necessarily protect individual liberties as stringently as does the United States Constitution.”

That may not go over well with readers from countries like Australia, Canada, United Kingdom and France.

The ruling can now be appealed to the full court of appeals in an en banc petition. The losing party on the en banc could then file for review before the Supreme Court. In my view, that would be a wise move by the FDA. However, much depends on the Administration’s view of the timing and the chance that the Court could get more conservative. There is also the question of time vis-a-vis the election.

Regardless of an en banc petition, there is now a split in the circuits — a classic basis for the Supreme Court to grant review. When one adds the importance of the case, the parties would have a strong case for a grant of certiorari.

Here is the opinion: 11-5332-1391191

Source: 12a0076p-06