Do FDA Graphic Labels Violate Corporate Free Speech?
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speechandprivacy.com htt p://www.sp eechandprivacy .com/2011/11/do-f da-graphic-labels -v iolate-corporate.html Do FDA Graphic Labels Violate Corporate Free Speech? Without a doubt, cigarette smoking causes irreversible damage to human health. These days, only a Rip Van Winkle could possibly claim to be unaware of the serious harm and dow nsides of nicotine addiction. At the same time, m uch to the frustr ation ofgovernmental agencies such as the Food and Drug Administration and the office ofthe Surgeon General , a fully informed populace continues to ignore these warnings and smoke anyw ay. It is established law that cigarettes ar e a law ful, though restr icted, product. As such, the government has not been successful in an outright ban ofsmoking. First Amendment law allow s the govern ment to limit speech under "narr ow ly tailored" conditions-such as the health and w elfare of it's people. Recently, the FDA has stepped up its game and required Cigarette producers to post graphic warnings that would cover 50% of the product's packaging. (A copy of the FDA briefcan be found here.) District courtjudge Richard Leon has declared this new warning a violation of the cigarette producer's free speech rights. Free Spee ch Issue : Are compelled governmental messages a violation ofcommercial free speech rights? The case under dispute is R.J Reynolds Tobacco Co et al v. U .S. Food and Drug Administration et al, U .S. District Court for the District of Columbia, No. 11-cv-1482. What makes this case unusual is not the fact that the government is compelling cigarette manufacturers to post an anti-smoking message--this is settled law and had been the case for sometime now. Rather, it's the fact that the FDA is compelling manufacturers to use agency approved graphics and its directive of how the package m ust be designed. It is using the authority given it through the Family Smoking Prevention and Tobacco Control Act (FSPTCA ). Through it, congress gave the F ood and Drug Administration the right and ability to regulate tobacco products-what is in the package; what is on the package; and what is said about the products in advertisements. Before this act, cigarette advert ising w as controlled by other agencies w ho determined the content validity of the messages. The arguments of the FDA and other public health organizations are basically this: The Government has a strong interest in more effectively informing consumers about the deadly effects of tobacco, The labels, which haven't been changed since 1984 have b ecome largely invisible to consumers, Evidence collected from 25 countries indicate that graphic warnings are more effective detriments to smoking. The arguments ofcigarette producers basically argue for the status quo and question the need foradditional regulation. “The Act’s w arning requirement is unconstitutional because it ‘unjustifiably and unduly burden[s] Plaintiffs’ commercial speech ... [and] unconstitutionally compel[s] Plaintiffs to disseminate the Government’s anti-tobacco message.’”...“the public already appreciates the health risks associated with using tobacco products” and that the health warnings therefore did not advance a Case 1:11-cv-01482-RJL Document 18 Filed 09/09/11 Page 11 of 55 legitimate government purpose. (p. 11) The Ruling Judge Leon's ruled in favor of the tobacco companies. U.S. District Judge Richard Leon , in a 29-page ruling Monday, granted the preliminary injunction because he believed there was a "substantial likelihood" the cigarette companies ultimately would win "on the merits of their position that these mandatory graphic images unconstitutionally compel speech." He also said that the images w ent beyond disseminating "purely factual and uncontroversial information" and ventured into advocacy. ( Los Angeles Times) Other quotes from Judge Leon's ruling include: “The sheer size and display requirements for the graphic images are anything but narrowly
