The Food and Drug Administration’s new cigarette warning labels, which include images of an autopsied corpse with its chest sewn up and a man smoking through a hole in his throat, made a splash when they were unveiled in 2010 because they departed from the government’s usual just-the-facts approach. But for that very reason, a federal appeals court ruled in August, they violate the First Amendment’s limits on compelled speech.
The labels, required by the Family Smoking Prevention and Tobacco Control Act of 2009, are supposed to occupy half of each cigarette pack’s back and front. But a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit concluded that they go well beyond the “purely factual and uncontroversial” disclosures that the Supreme Court has said the government may require to prevent “deception of consumers.”
Instead, Judge Janice Rogers Brown wrote for the two-judge majority, the labels “are primarily intended to evoke an emotional response,” thereby encouraging smokers to quit and deterring nonsmokers from picking up the habit. This anti-smoking message, she said, “raises novel questions” such as, “How much leeway should this Court grant the government when it seeks to compel a product’s manufacturer to convey the state’s subjective—and perhaps even ideological—view that consumers should reject this otherwise legal, but disfavored, product?”
Assuming that “such compulsion is constitutionally permissible,” Brown said, it still must satisfy the test established by the Supreme Court for regulation of commercial speech: It must be narrowly tailored to serve a substantial government interest. Yet the FDA “has not provided a shred of evidence…showing that the graphic warnings will ‘directly advance’ its interest in reducing the number of Americans who smoke.”
In March the U.S. Court of Appeals for the 6th Circuit upheld the statutory requirement for new warning labels, although it did not address the designs picked by the FDA. The issue may ultimately be resolved by the Supreme Court.