On March 9, 2012, the U.S. Circuit Court of Appeals for the District of Columbia granted the FDA’s motion to consolidate the agency’s appeal of the Nov. 7, 2011, federal district court ruling granting a preliminary injunction against the enforcement of the FDA’s graphic image/text statement cigarette warnings and the Feb. 29, 2012, federal district court summary judgment decision finding that these new health warnings violated the free-speech protections under the First Amendment of the U.S. Constitution. A three-judge panel of the U.S. Circuit Court of Appeals will hear oral arguments on both of these appeals on April 10, 2012.
The five major tobacco manufacturers that brought the original lawsuit against the FDA challenging the graphic image cigarette warnings include R.J. Reynolds Tobacco Co., Lorillard Tobacco Co., Commonwealth Brands Inc., Liggett Group LLC and Santa Fe Natural Tobacco Co. Inc. The main claim made by the tobacco manufacturers in the lawsuit is that the FDA’s graphic image warnings violate the First Amendment to the U.S. Constitution that protects free speech, including commercial speech such as advertising. When the government mandates that a company make a statement that the business would not otherwise make if it had a choice, this type of speech is known as "compelled speech" and is presumptively unconstitutional.
For compelled speech to be constitutional, a government can only mandate that a company provide factual and uncontroversial information to consumers about its products, such as the factual statements in the current Surgeon General warnings on cigarette packages. In the Feb. 29 decision, Judge Richard Leon found that “the graphic images here were neither designed to protect the consumer from confusion or deception, nor to increase consumer awareness of smoking risks; rather, they were crafted to evoke a strong emotional response calculated to provoke the viewer to quit or never start smoking.”
That is, the FDA’s main objective was not to give the public factual information about smoking in order to make an informed choice, but rather to advocate for a change in an individual’s behavior, namely, to never start smoking or to quit smoking. Judge Leon determined that the FDA crossed the line “between the constitutionally permissible dissemination of factual information and the impermissible expropriation of a company’s advertising space for Government advocacy.” In other words, Judge Leon reasoned that the FDA was unlawfully requiring the tobacco manufacturers to “speak" to their customers through the graphic image warnings by telling them not to purchase legal tobacco products.Moreover, the judge stated that there are numerous alternatives to the large graphic images that would be more narrowly tailored such as reducing the warnings from 50% of the front and back of packages to 20% of the packaging space, requiring warnings only on the front or back of packages, selecting graphics that convey only factual and uncontroversial information, and improving efforts to prevent the unlawful sale of cigarettes to minors.
In the concluding paragraph of his ruling, Judge Leon found that the FDA failed to carry both “its burden of demonstrating a compelling interest and its burden of demonstrating that the [graphic image mandate] is narrowly tailored to achieve a constitutionally permissible form of compelled commercial speech.”
A press release issued Feb. 29 by the Obama Administration regarding the FDA’s appeal of the federal court ruling stated: “This Administration is determined to do everything we can to warn young people about the dangers of smoking, which remains the leading cause of preventable death in America. This public-health initiative will be an effective tool in our efforts to stop teenagers from starting in the first place and taking up this deadly habit. We are confident that efforts to stop these important warnings from going forward will ultimately fail.”
