On Friday the U.S. Court of Appeals for the D.C. Circuit ruled that graphic cigarette warning labels proposed by the Food and Drug Administration (FDA) violate the First Amendment. The court concluded that the labels, which would occupy half of each cigarette pack's front and back panels as well as one-fifth of each cigarette ad, 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 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...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. "The First Amendment requires the government not only to state a substantial interest justifying a regulation on commercial speech," Brown noted, "but also to show that its regulation directly advances that goal." Yet the FDA "has not provided a shred of evidence—much less the 'substantial evidence' required by the [Administrative Procedure Act]—showing that the graphic warnings will 'directly advance' its interest in reducing the number of Americans who smoke." Although the FDA "makes much of the 'international consensus' surrounding the effectiveness of large graphic warnings," it "offers no evidence showing that such warnings have directly caused a material decrease in smoking rates in any of the countries that now require them."
The Family Smoking Prevention and Tobacco Control Act of 2009 required the FDA to create the new warnings, which feature disturbing images such as diseased lungs, an autopsied cadaver, a crying baby, and a man smoking through a hole in his throat, along with the phone number for the National Cancer Institute's “Network of Tobacco Cessation Quitlines." The D.C. Circuit was reviewing a decision by U.S. District Judge Richard Leon, who reached similar conclusions last February, although he applied "strict scrutiny" to the warnings instead of the "intermediate scrutiny" the appeals court deemed appropriate. 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.
[Thanks to Michael Siegel for the tip.]