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
If the government can force a company selling cyanide to put a skull and bones Poison symbol on the label then they can do the same for the cigarette packages. When people commit suicide by smoking, they should know that is what they are doing. Outlaw tobacco and give the smokers loaded guns so that the whole thing is quicker and less painful. Cut out the doctors, hospitals, pharmacies. Show them short videos on where to aim the pistol.
What happened to the “We the People’s” (=government agencies represent “the people”) speech rights?
All of this anti-smoking conversation might be interesting and certainly partisan, but remember this. We as a country tried the banning of alcohol in the early part of the last century, and you see what THAT brought us: organized crime. It’s the same with this silly ‘war on drugs’. The bottom line is that you can make anything you want illegal, and as long as there is a desire for that product, there will be a way to obtain it. As for smokers, while WE might not ‘approve’ of their choice, but this advertisement issue is the very first baby step on the the slippery slope called Prohibition.
It is a tad more serious than personal smoking habits:
(The “It’s In Your Genes” Myth, emphasis added). When so many deaths and lives are at stake, a bit of shock treatment does not seem other worldly now does it?
blouise, you nailed it.
BettyKath,
Add “poopery in the media” and that will promote mental health. Add “pork barrel” if you want healthier politics.
I think “we” are going after the wrong things. I’m not sure that cigarettes are the problem. The tobacco is grown using chemical fertilizers and lots of pesticides. The paper is bleached with dioxin. The tobacco companies added ingredients to make them (more?) addictive. So it isn’t necessarily the “pure” tobacco but the pollutants that are killing and maiming people.
Some rules for better health: get rid of the three “Ps” – preservatives, pesticides, and processing, i.e. fresh organically grown raw (or home cooked) fruits and vegetables.
If the government can outlaw pot and crack cocaine then they can outlaw cigarettes, cigars, chewing tobacco. And if they can out law their sale then they can regulate their sale. We dont allow naked photos on the front of newspapers. Britain does not allow nude photos of Prince Hairy in their newspapers– at least they are trying to stop it. Mike Wallace, Ed Murrow and lots of schmucks got paid to smoke on television news shows so as to sell the cancer to the uninformed. Cronkite writes in his Memoirs about the funny time when he corrected the tag line of Winston Tastes Good Like a Cigarette Should and got chastised. Cronkite does not lament the fact that he too is responsible for millions of Americans taking up the cancer plunge.
A corporation might have some First Amendment rights. The judge doesnt speak to the various prongs of the First Amendment. Perhaps the Right To Petition One’s Government for Redress of Grievances prong might be of interest. Religion Prong? Nah. I wonder if this judge who wrote this opinion is a smoker? If so then her kids need to have a word with her. And her minister. And when she goes to the Pearly Gates after her time on Earth is up and has to met Saint Peter, or his stand-in, the stand-in will probably be some angel with a trachiotomy. A deaf one at that. This judge will probably meet a similar fate as that perp who is the topic of the previous article here today–the guy who molested the five year old kid forty plus years ago.
The R. J. Reynolds corporation is killing millions of people. Their right to promote their poison has limits as well as their right to sell it in the first place. You cant yell Fire in a theatre and have First Amendment protection and I suggest that you can promote poison to minors, adults or chimps.
It’s not really clear that these things work, with smokers or non-smokers. This seems like the sort of bandwagon that easily collects supporters (not unlike orthodox law and order campaigns) mostly based on emotion.
Well, I’ve never heard of a “safe” level of cigarette use, and the exposure to second-hand smoke is a problem for non-smokers. And they are formulated to be addictive! I don’t drink, either, and I do think drinking and other forms of self-medication are a huge problem. I don’t need to self-medicate to enjoy or “tolerate” life. But drinking can be done in moderation, and is touted as beneficial in small amounts. Fried foods can be enjoyed in moderation, but yes, obesity and the ill health that follows is an issue, too. But there’s nothing redeeming about smoking. Nothing. And its legality doesn’t change that fact. Marijuana isn’t legal yet, and is apparently safer than smoking, and has medical benefits. As far as the “freedom” of smokers, that’s a fine and dandy (and selfish and self-destructive) position to take, that adults have the right to take. Adults do have the right to self-destruct, and damn everyone else around them. However, this insidious habit most often starts in CHILDHOOD (with no small blame on marketing), where the concept of choice is not even fully formed before it is snatched away by addiction. It’s a horrible enterprise that relies on new and younger addicts for its very survival. The illusion of choice does not usurp the horrible reality of the destructiveness of smoking.
There was clamour several years ago of others perceiving our courts using the court and legal rulings of other nations as reference and thereby sacrificing our own system in the process. Sharia law being the most glaring.
well… for starters… that was a BUNCH of politicians wanting to gain points by making leash laws for unicorns…. to steel a phrase from Jon Stewart….
and for freaken sake…. the USA is NOT the ONLY FREE country in the world… it is also NOT the ONLY country with a constitution…..
NOT only that…. it really was NOT a Freedom of speech case….
the reason why it was shot down, was because the images were NOT thought out very well, thus being rather pointless and uninformative….
costing a lot of money by the tobacco companies, and the government, for no real benefit….
So, NO it was not even about freedom of the citizens…. that was an opportunistic grand standing of…. OH AMERICA is so GREAT….
Fact is, there are areas of the USA that are more free… that being said…. there are things and areas of European countries that offer more freedoms….
My daughter can wear a T-shirt to school that says, “F*ck Off”
and no way would she be sent home or even looked at strange….
Try to get away with that one at any school in the USA….
also… our news papers will write actual words like shit, screw, f*ck….
there are a LOT of freedoms here, that I had not experienced in the USA…..
Fact is… I think people are too preoccupied with this whole Ohhhh freedom of speech… oh… somebody wants to take my guns…. Ohhhh my freedom….
Fact is, Bush took away a freedom that DOES affect people….
The Anti-fourth Amendment Patriot Act…
why was it, what Bush was ripping that up, NOBODY was screaming about the Constitution?????
A Civil Liberty that was ripped away, and NOT a word about it… and where are the Supremes on this subject????
Pollyanna….
what about fried foods????
and alcohol????
Alcohol kills and ruins many lives as well….
I’m a smoker… and I enjoy smoking…. It is legal…
Leave it alone…. and just make sure there is a LOT
of education so kids do not get hooked on it…
other than that…. we pay HIGH taxes to smoke… at what point will
people just leave the smokers alone, and just let us have OUR FREEDOM??????
“Tobacco companies are persons too.”
Here we go again.
I am not unbiased here, so anything and everything to drive tobacco out of business (a fantasy, I know) would be OK with me. I despise those drug pushers and pimps. They do nothing but wreak horrific havoc on not just individuals, but on everyone who loves those individuals.
Z – I love “the squeal test” what a perfect marker. It certainly has been true over the past couple of decades here.
I was not much concerned about this as I didn’t think it would have the desired results but, given the squeal test maybe I should reevaluate that.
Justagurl – I don’t believe the sun raises in the East every morning makes as much sense as saying not believing that second hand smoke causes cancer as a defense. Actual scientific studies performed by actual scientists and reviewed by other actual scientists show that it does so your belif system may not serve as much of a barrier.
it is also refreshing to read Judge Brown commented about the other countries not having as stringent the constitutional speech protections the United States offers citizens. There was clamour several years ago of others perceiving our courts using the court and legal rulings of other nations as reference and thereby sacrificing our own system in the process. Sharia law being the most glaring.
For the sake of exercise, I wonder if an eminent domain issue might exist in placing large images on the packs of smokes. One could argue the face of the cigarrette pack serves wholely as advertisment space and mandating the taking of 40% of this deprives the company of the full use of its property.
Well…. What do you expect…
In Australia we’re miles ahead of you guys; we’ve just enacted (and the tobacco companies just LOST their appeal) plain packaging laws. The SQUEAL test was applied – the harder big tobacco faught, the more effective the measure MUST be.
John Stuart Mill would not recognise your silly country.
This is so da*n typical. First the courts say an administration was over-reaching so Congress reacts with the Family Smoking Prevention and Tobacco Control Act granting the FDA authority … by the way, it was very bi-partisan.
Then the court says the FDA is over-reaching by sending a message rather than facts.
So which propagandic approach will win, the corporation’s or the government’s? Free speech? That’s a hoot.
[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.”
YEAH…. hahahaha…
OK.. so.. Money is free speech…. BUT, photos are not…
Now, keep in mind that I think the photos are a bad idea….
I am a smoker…. and they really do little good…
Tho, they might get family members to go after you harder with more guilt….
anyway….
this individual liberties crap, is just that… crap…
In many cities around the USA you can hardly smoke outside….
and really, I do NOT think second hand smoke causes cancer…
I do think, that smoking DOES….
So, these new laws barring citizens from smoking in parks and outside of buildings…. well… that is NOT protecting individual liberties….
The cigarette packs already have a mini billboard on them, stating that smoking kills…. I do not see where the photos are any different…..