Appeals Court Agrees That the FDA's Graphic Cigarette Warning Labels Are Unconstitutional


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.]

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  1. 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.”


    How dare the courts defy consensus!

    1. And even if we accept the consensus, so what? Showing that graphic warnings get people to stop smoking doesn’t show that forcing people to try to get their customers to quit is constitutional.

  2. Jesus, why can’t we have JRB on the SCOTUS?

    1. Can you imagine the asplodin’ southpaw heads to have two rock-ribbed originalist/libertarian types on the SCOTUS, both of them African-Americans?

      1. Not possible, she’s neither black nor a woman because she thinks “incorrectly.”

  3. How will I ever quit smoking (again) without these graphic labels?

  4. Jeebus on a pogo stick, they must have a different copy of the Constitution they pass out to these judges. Mine says nothing about commercial speech, substantial governmental interests, or substantial evidence.

    It just says “Congress shall make no law . . .”

    1. Congress shall take no shawl?

    2. It requires special training from an Ivy League law school combined with magical black robes to be able to properly interpret the hidden meanings of that dusty old document that was written by propertied white slave owners.

      1. au contraire mon frere. Judges Stranch and Barrett (the Sixth Circuit Judges upholding the restrictions) attended Vandy and Cincinnati, respectively. Barrett’s a Republicans and a Bush appointee.

        Something to keep in mind next time the H?Runpublicans tell you how much better their judges are (see also: Roberts, John G.)

        1. I believe the Supremes are all Ivy League.

    3. Indeed. Courts were never meant to be, and should not be, the final arbiters on acceptable speech — that is a function reserved to the people.

      1. that is a function reserved to the people which, for legal purposes, does not exist in the United States.

        1. Not as a legal concept, no — but voluntary society judges speech all the time.

          In a very real sense, the general public does judge the acceptability of speech.

  5. I’m looking forward to the Roseanne Barr centerfold on my McDonald’s Number Three meal.

  6. The only downside here is that in every ruling, they overcomplicate their decision.

    “Congress shall make no law…” would have been sufficient, followed by a penalty awarding the legal fees and punitive damages to anyone challenging the government in a speech-restriction case.

    And those awards should come directly from the operating budgets and pension funds of the departments passing the policies or from Congress when it is generated by a law’s passage. And that money should not be reallocated in any subsequent years.

  7. Does this mean that the government can’t force GM to display pictures of car accident victims on the sides of Impalas?

    1. Or better yet, should they be forced to display images of dead Yemeni and Pakistani children killed by our murderdrone program on the walls of military recruiting stations?

      I’d say they should put images of victims of police brutality on the walls of the local police academies, but the most likely result of that would be cadets going all Paul Reubens and pulling out their dicks and beating them raw.

      1. Or to have pictures of the mounds of corpses from the USSR, China, Cambodia, North Korea, Nazi Germany, etc. posted on every voting booth to remind the electorate of what happens when government is given free rein.

  8. They should have required cigarette companies to put the warning label on the package or pay a penaltax. That would have been perfectly constitutional (apparently).

    1. All hail the penaltax! What can’t it do?

  9. Isn’t this a case about *compelling* speech? I would like to see the judges call out that distinction and clarify it for the nefarious action that it is.

  10. I wonder if someone will do some parody of the cigarette warning labels like this example of media warning label?

  11. I have to laugh at the amount of time these nannies continue to waste on such horseshit. First we banned the cigarette companies from advertising, then we tried to sue them to death, now we’re screwing with their packaging. Over this time, the single highest returning stock in this country has been Philip Morris.

  12. Every framer admitted no power was delegated to congress to regulate the press or speech. See:….._the_press

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