The FDA’s Cigarette Pack Anti-Smoking Billboards

The new FDA regulations for cigarette packaging raises additional First Amendment issues to the extent that it is a case of compelledFDA cigarettes packs speech, as opposed to being one of prohibited speech. The case precedents in this area go back to the 1940s in purely political contexts as opposed to commercial speech.

In Minersville School District v. Gobitis, 310 U.S. 586 (1940), the Court upheld a school administrator’s decision to expel Jehovah’s Witness students who refused to salute the flag. Then, after a large public outcry, and the addition of two new Justices, the Court reversed that ruling in West Virginia v. Barnette, 319 U.S.624 (1943), with three of the Minersville majority reversing themselves. The Barnette ruling, however, did not go any further than finding an inconsistency between recognizing a right to speak one’s own mind and allowing public authorities to compel an individual to say what he does not believe.

Thirty-four years later, in Maynards v. New Hampshire, 430 U.S. 705(1977) the Court overturned the conviction of Jehovah’s witnesses who had covered over the state motto “Live free or die” on their license plates. Chief Justice Burger’s opinion chastised the state for compelling individuals to be “couriers for ideological messages” and “mobile billboards” for the state’s politically charged motto.

The First Amendment thus unquestionably prohibits the government from compelling any person to speak against their beliefs or interests as well as prohibiting the suppression of speech. Barnette and Maynards, however, involved purely political messages, but what about compelling commercial speech via regulation?

In R.J. Reynolds Tobacco Co. v. Shewry, 423 F.3rd 906 (2005),the Ninth Circuit Court of Appeals upheld a California statute that applied specific revenues obtained from the tobacco industry through a 25 cent per pack cigarette tax to fund anti-smoking advertisements that vilified the industry. The Court rejected Reynolds’ argument that this was unconstitutional as it compelled the company to speak against its interests by funding a message with which it strongly disagreed.

The Court of Appeals opinion in the R.J. Reynolds case relied on recent Supreme Court rulings that give broad discretion to the states as to how they spend tax revenues, including public information campaigns that target specific industries. The Supreme Court denied certiorari in 2006, thus letting the Ninth Circuit ruling stand. R.J. Reynolds Tobacco Co. v. Shewry, No. 05-867 (Feb. 21, 2006).

In R.J. Reynolds, the Court of Appeals tacitly recognized that spending money on advertising or public service messages was a form of protected speech, as has been made explicit by the Supreme Court’s 2010 ruling in Citizens United v. Federal Elections Commission, that upheld the right of corporate free speech in the form of spending money to influence public opinion and voters on political issues. The ruling in Citizens United has proven to be highly controversial in large measure because corporate “speech” via spending money can be done anonymously in political campaigns, a factor which by definition is not present in context of corporate packaging and advertising to sell products.

In the context of tobacco products, restrictions on advertising over broadcast media have been in place for decades. In Capitol Broadcasting Co. v. Mitchell, 404 U.S. 1000 (1972), the Supreme Court affirmed per curiam a ruling by the D.C. District Court, 333 F. Supp. 582 (1971) upholding a federal law, 15 U.S.C. Sect. 1335, that barred cigarette ads on television. In a later case, Pittsburgh Press co. v. Pittsburgh Commission on Human Relations, 413 U.s. 376 (1973), a case involving censorship of print media, Justice Powell’s majority opinion distinguished the Court’s summary ruling in Capitol Broadcasting on the basis that it applied only to restricting commercial messages on broadcast media, not in print media..

Similarly, health warning labels on cigarette packages have been required since 1965 under the Cigarette Label and Warning Act. The tobacco industry did not appeal from that legislation at the time, deciding instead to accept the modest factual message about health risks that the law required on all cigarette packs. They were confident, to be sure, that the warnings would not deter many of their older existing customers, hard core nicotine addicts, while they just might insulate the industry from liability for smoking related diseases to people who took up the habit after the warnings were printed on the packages.

Not all inroads on the tobacco industry’s commercial free speech rights have been upheld under the First Amendment or acquiesed to by the manufacturers. In Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001), the Supreme Court struck down a series of Massachusetts regulations that restricted the advertising of tobacco products. A threshold issue under the Supremacy Clause of Article VI might have sufficed to render the state regulations invalid, as against exclusive federal jurisdiction under statute, but the Court went on to analyze the regulations as limiting commercial speech under the First Amendment as well.

On the First Amendment issue, the Court in Lorillard held that the Commonwealth failed to meet its burden to show that a ban on outdoor advertisement of smokeless tobacco and cigars was not more extensive than necessary to advance the admittedly valid state interest in curbing underage tobacco use. That ruling thus turned on the fourth criterion of Central Hudson, where the ads in question promoted a lawful activity and were not misleading, while the state’s interest was admittedly substantial and the regulation would directly advance that interest.

That same criterion will be the crux of any appeal by the tobacco industry from the FDA’s new requirement for more prominent and more graphic labels on cigarette packs. The rationale for the 1965 law was that tobacco advertisements showing healthy vigorous people smoking cigarettes was deceptive, which would trigger the first criterion under Central Hudson, and the health warning labels were conceived as a legitimate way to achieve a more balanced presentation to the consumer.

The presentation became even more balanced in 1971 when 15 U.S.C. Sect. 1335 took effect, banning cigarette ads on broadcast media. Still cigarettes and other tobacco products remained legal, while public awareness of the serious health hazards of smoking has steadily increased. Nobody today would buy into the Old Gold cigarettes slogan “Not a cough in a carload,” even if the tobacco companies had the effrontery to resume that kind of overtly deceptive advertising.

So, the question again devolves to the fourth criterion under Central Hudson, whether the new FDA regulations that compel cigarette manufacturers to put graphic images on their product at the point of sale are valid under the First Amendment, or whether they substantially exceed what is reasonable and necessary to serve the government’s interest in the issue. That question requires a closer look at what the government’s interest is in this context.

The specific rationale for the Cigarette Label & Warning Act of 1965 was to counter what was, with good reason, then considered to be deceptive advertisement by the tobacco industry. Today, however, cigarette advertising has been severely restricted to print media, and the content is not overtly deceptive as some of the older ads which made claims like “more doctors recommend smoking Camels than any other cigarette.”

There is a real public health issue involved with both smoking and smokeless tobacco use, but if the government’s purpose is to coerce or scare people into quitting cigarettes, a simpler way would be to ban cigarettes and tobacco products outright, without getting into any thorny free speech issues under the First Amendment.

There are, beyond any doubt, serious health issues involved with smoking, but despite widespread if not universal recognition of those issues, many people continue to smoke cigarettes. Many of them are addicted, and many others smoke for reasons of vanity, to create and maintain for themselves an image of presumed sophistication or glamour that current cigarette ads in print seek to foster.

That kind of image appeal, however, is materially different from the blatantly deceptive health claims of older cigarette advertising. In the first place, purely subjective considerations of beauty, glamour and sophistication are in the eye of the beholder, in marked contrast with objectively diagnosed medical conditions like lung cancer, emphysema or heart disease. If a significant number of consumers believe smoking is hip, glamorous, macho or sophisticated, even with the help of cigarette ads in addition to Hollywood product placements, then it is in fact hip and glamorous despite the very real health concerns that obtain. For this reason, cigarette ads based on that kind of imagery cannnot be considered deceptive, especially where the packaging already contains accurate textual information about the health risks.

Again, everyone with a functioning brain in today’s America already knows that cigarettes cause cancer and other serious health problems, but despite such knowledge many of our fellow citizens continue to smoke. Nobody today is really being deceived by cigarette ads on any health issues, and therefore the pending regulations that require cigarette manufacturers to place graphic and grotesque imagery on their packaging is clearly excessive as a means to counter deceptive advertising or to promote any other govenmental interests sufficient to override the manufacturer’s right of free speech.

There is also the consumer’s right of free expression to be considered here. Many smokers have strong brand loyalties, and they willingly display the brightly colored packs as an element of their own public image and self-expression. The common image of a biker in white tee shirt with a box of Marlboro’s twisted into one of the sleeves as a macho man gesture is one example of this phenomenon. Individual smokers, the consumers being targeted by the FDA’s new regs, derive gratification from this that will clearly be impaired by being forced to carry the new grotesquely graphic packs or, in the alternative, quit smoking which is in fact the FDA’s actual agenda, as opposed to just providing full disclosure of health risks.

Here, too, many consumers will simply purchase metal cigarette boxes and discard the new packaging, or they will use plastic slip-on covers to conceal the new graphic packaging which they will find highly offensive rather than simply informational. The tobacco companies might also just look the othe way as plastic novelty manufacturers replicate older, Classic brand cigarettes to fit over and hide the new packaging, which would defeat the FDA’s purpose entirely. In that event, what will the smoke police do -enforce the tobacco companies’ trademark rights? Or will they arrest the smoker for covering up the new graphic cigarette pack with a legally purchased plastic replica of the old pack?

The FDA is undoubtedly concerned about younger people taking up smoking, in part based on printed cigarette ads that target them, e.g. Newport’s “alive with pleasure” slogan, but that is not deceptive where many people do find pleasure in smoking cigarettes. Besides, both parental smoking and peer pressure are equally strong if not stronger influences on teenage smoking than the printed cigarette ads per se. This is especially true where younger Americans are less likely to be reading magazines today as opposed to watching television where all tobacco advertising is banned.

There’s another factor that enters ironically into young people taking up the habit, and that is marijuana. Many young people today who smoke marijuana also take up cigarettes, not to appear macho, sophisticated or glamorous, but simply to provide cover for their pot smoking. The aroma of cigarette smoke is used to conceal or mask the smell of pot, especially the more aromatic cigarette brands that many younger people favor, and carrying a pack of cigarettes around provides cover for their carrying the matches or lighter they use for marijuana.

So, yes, it’s clear beyond any doubt that cigarette smoking causes serious health problems, but the same can be said of many other common practices, like drinking alcohol, driving automobiles, eating fatty foods and, most assuredly, enlisting in the armed services. Meanwhile, the government has not found it necessary to require breweries to put pictures of someone puking on every beer can, or require distillers to put pictures of a cirrhotic liver on every bottle of vodka.

Personally, I’d love to see Congress mandate that pictures of dead soldiers with heads blown off be prominently displayed on every Army recruiting poster in every post office all across America -which would really be truth in advertising. Seriously, though, to require that kind of graphic imagery on cigarette packs, but not on beer cans or automobile speedometers, raises an issue of equal protection under the 14th Amendment, as well as free speech under the First Amendment.

Just this past week, in Pliva v. Mensing, the Court held that generic drug manufacturers cannot be sued for failing to provide a stronger health risk warning on their packaging than is required for the equivalent brand-name product. The Pliva ruling was focused narrowly on the basis of pre-emption under the Article VI Supremacy Clause, and did not directly address the equal protection issue, but it clearly raises questions of equal protection and subsantive due process.

There are many products that, like cigarettes, carry a risk of causing serious illness or injury to consumers and/or the general public, and the government does indeed require printed warning labels on everything from beer to chain saws, but there’s been no talk of requiring graphic warnings like, say, gory pictures of lost limbs on every chain saw. So unless and until the government starts requiring graphic, repulsive imagery as part of the required warnings on all products that pose a danger of illness or injury, the new FDA cigarette warnings clearly do not meet the fourth criterion under Central Hudson, where the new cigarette labeling requirements are clearly excessive for the legitimate governmental purpose of providing information to assist the consumer in making an informed choice of whether to purchase the product.

The fact that such graphic warnings of well known health risks are not required on alcoholic beverages or, say, sugar products, is a tacit acknowledgment that the existing textual warnings are sufficient to the legitimate purpose of conveying information about the serious health risks involved with consuming alcohol or sugar, so the same must be true for smoking. Beer and candy ads are at least as “deceptive” as cigarette ads insofar as consumers are portrayed as vigorous and healthy young people, smiling and laughing as they enjoy the product. The extremely graphic imagery required on cigarette packs by the new regulations thus goes far beyond what is legitimately necessary for purely informational purposes, and enter the realm of social engineering -a blatant attempt to dissuade smokers from purchasing the product as opposed to merely providing accurate information as to the risks and then letting the individual decide.

Again, if the government wants people to stop smoking, Congress can pass a law prohibiting the sale and use of all tobacco products, based on clear and important considerations of public health. That, of course, would be utter folly, as was shown with Prohibition and is now playing out with Nixon’s interminable “War on Drugs.” The government also has every right to continue funding anti-smoking campaigns, even using cigarette tax money to do so as held in the R.J. Reynolds case.

But the new FDA rules go far beyond being an exercise of government discretion on how to spend tax revenues or providing meaningful product information to the consumer, and instead get into an area of coerced speech whereby the tobacco companies are required to carry the government’s anti-smoking message on their point of sale packaging. That is no different in principle from Justice Burger’s observation in the Maynard case that the state cannot compel anyone to create a billboard to carry the government’s ideological message.

This is where the new FDA regulations clearly violate the cigarette manufacturer’s First Amendment right of commercial free speech, and raise thorny issue of equal protection and substantive due process as well. The tobacco industry is being singled out for onerous regulation while other industries whose products create equally significant health or safety risks are not subjected to similar regulation.

Again, as held in the 44 Liquormart case, the government cannot single out the tobacco industry on the basis of relative social utility, simply because smoking is viewed by many as a “vice” in addition to being a health problem. Given the fact that such extremely graphic packaging images are not required for other products that pose serious health risks, the new FDA cigarette packaging regulations go far beyond the narrow informational purpose for which health and safety warnings are legitimately and reasonably imposed on a wide variety of consumer products across the board. Those new regulations are therefore excessive under the Central Hudson criteria, and thus violate the tobacco companies’ First Amendment right of commercial free speech.

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