Information v. Advocacy: The D.C. Circuit Puts the Current Version of the FDA's Cigarette Label Requirement Up in Smoke

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In a 2-1 decision on August 24, 2012, the D.C. Circuit Court of Appeals ruled that the Food and Drug Administration’s (FDA) mandate requiring graphic images on cigarette packages is unconstitutional. The D.C. Circuit’s ruling seems to oppose a Sixth Circuit decision in March that upheld the FDA’s general authority to compel cigarette companies to place the images on their packages. Despite acknowledging that commercial speech is generally afforded less First Amendment protection, and that the government can “use shock, shame, and moral opprobrium to discourage people from becoming smokers,” Judge Janice Roger Brown noted in the majority opinion that, “this case 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 – in this case, by making ‘every single pack of cigarettes in the country [a] mini billboard’ for the government’s anti-smoking message.”

At the center of this smoky controversy is the FDA’s unfiltered attempt at influencing current and potential smokers. The Family Smoking Prevention and Tobacco Control Act of 2009 gave the FDA the power to regulate the manufacture and sale of tobacco products. In accord with their new authority, the FDA planned to require cigarette companies to place one of nine graphic images on cigarette packages, which would take up to 50% of their package labeling. The nine graphic images ranged from images of diseased lungs to a man on a respirator. Additionally, the images would be coupled with a “1-800-QUIT-NOW” hotline phone number.

While the D.C. and Sixth Circuit seem to be at odds, it is not clear to what extent they disagree. The Sixth Circuit did not rule on the specific constitutionality of the nine images, and the D.C. Circuit did not necessarily negate the right of the government to impose their ideological view on a company, as the majority noted, “for present purposes, we can assume, without deciding, that if such compulsion is constitutionally permissible, the state’s actions must still with stand the applicable level of scrutiny.” Rather than criticizing the FDA’s power in general, the D.C. Circuit aimed its opinion at the labels themselves, ruling that “many of the images do not convey any warning information at all, much less make an ‘accurate statement’ about cigarettes.”

The D.C. Circuit took specific exception to what they viewed as the FDA’s failed attempt to justify the images, as the majority ruled 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.” Given the directed rhetoric of the D.C. Circuit, the FDA could possibly appease them by changing the nature of the images. However, the FDA is currently reviewing the D.C. Circuit’s decision, and an appeal to the Supreme Court is likely.

Joe Camel and the Marlboro Man will not be the only ones interested in how the Supreme Court handles the circuit split. In light of recent attempts to regulate fast-food restaurants, the circuit split could affect other industries as well. The issues pertaining to the tobacco companies are relevant to advertising in general, and the Supreme Court now has the opportunity to make an impactful decision regarding First Amendment jurisprudence.

Posted by Ethridge Brittin Ricks (Britt) on Mon. August 27, 2012 2:14 PM
Categories: Cigarette Smoking

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