Appeals Court: FDA Tobacco Warning Label Law Violates Free Speech

A divided U.S. Federal Court of Appeals invalidated a government mandate requiring tobacco companies to place graphic images on their products warning of the dangers of smoking. The majority opinion stated that the requirements were a violation of free speech.

The Family Smoking Prevention and Tobacco Control Act of 2009, would have required nine written warnings such as “Cigarettes are addictive” and “Tobacco smoke causes harm to children” on the packages, along with alternating images of a corpse and smoke-infected lungs. Other images required would have been a man smoking through a tracheotomy hole, a diseased mouth, and smoke coming from a child being kissed by her mother.

These written and graphic warning labels were scheduled to begin appearing next month. They would have covered half the cigarette packaging sold at retail outlets and 20% of all cigarette advertizing.

Tobacco giant, R.J. Reynolds, along with others such as Lorillard, brought the suit, saying that the warning would be cost-prohibitive. They also asserted the graphic images would dominate the packaging and damage the promotion of their brands. The relevant legal question was whether the new labeling was purely factual and accurate in nature or was designed to discourage use of the product.

The tobacco companies won in federal court in March, but the government appealed. The 2-1 split U.S. Court of Appeals for the District of Columbia has now upheld that ruling and the Food and Drug Administration was ordered to immediately revise its rules.

“The First Amendment requires the government not only to state a substantial interest justifying a regulation on commercial speech, but also to show that its regulation directly advances that goal,” wrote Judge Janice Rogers Brown. “FDA failed to present any data — much less the substantial evidence required under the federal law — showing that enacting their proposed graphic warnings will accomplish the agency’s stated objective of reducing smoking rates. The rule thus cannot pass muster” under past court precedent.

Judge Brown and Judge A. Raymond Randolph rejected the FDA’s claim that it had a governmental interest in “effectively communicating health information” regarding the negative effects of cigarettes.

“The government’s attempt to reformulate its interest as purely informational is unconvincing, as an interest in ‘effective’ communication is too vague to stand on its own,” said Brown. “Indeed, the government’s chosen buzzwords, which it reiterates through the rulemaking, prompt an obvious question: ‘effective’ in what sense?”

The majority opinion said the case raised “novel questions about the scope of the government’s authority to force the manufacturer of a product to go beyond making purely factual and accurate commercial disclosures and undermine its own economic interest […] by making every single pack of cigarettes in the country a mini billboard for the government’s anti-smoking message.”

Judge Brown and Judge Rudolph concluded that the FDA had not provided a shred of evidence that the images and warnings would directly advance its policy of reducing the number of smokers in America.

Judge Judith Rogers held the dissenting opinion, saying the rules do not violate commercial free speech.

“The government has an interest of paramount importance in effectively conveying information about the health risks of smoking to adolescent would-be smokers and other consumers,” said Rogers. “The tobacco companies’ decades of deception regarding these risks, especially the risk of addiction, buttress this interest.”

The U.S. Government is not the only one pushing such legislation. Many other countries have recently required similar packaging changes, and Australia went even one step farther by banning tobacco company logos on the cartons.

The FDA has not said if it will appeal the decision to the Supreme Court, but many speculate that it is exactly the kind of case the Court would choose to accept. A separate federal appeals court in Cincinnati in March ruled the FDA mandate constitutional and such a split is a good indication that the Supreme Court Justices would intervene and offer a final constitutional assessment.

Several other lawsuits over the labels are pending in federal court, part a two-decade federal and state effort to force tobacco companies to limit their advertising and settle billions of dollars in state and private class-action claims over the health dangers of smoking.

Although the law in question would regulate the amount of nicotine and other substances in tobacco, and limit promotion of tobacco products and promotional merchandizing at public events, the free speech aspect was the only issue in this current case.
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