First Amendment Victory For Tobacco Industry

A case from the District Court for the District of Columbia decided earlier this week tells us again that the First Amendment applies to people we don’t especially like. It also reminds us that the First Amendment protects the right to speak, but also the right not to speak. At issue were new rules promulgated by the Food and Drug Administration that would require cigarette packages to contain strong anti-smoking textual messages, coupled with graphic images of the effects of smoking. The textual messages say things like: “cigarettes are addictive” and “smoking can kill you.” The graphic images include a picture of a smoker, post tracheotomy, exhaling smoke through the hole in his throat. Another features a bare chested cadaver with post autopsy staples running down the middle of his torso. The tobacco companies don’t object to the text messages, but they do object to the pictures. The question posed to the court was what type of “scrutiny” to apply to the regulation. The FDA argued that the graphic images were nothing more than factual disclosures that can be mandated on products, such as nutritional information on food products. The tobacco companies argued, and the court agreed, though, that the images were not the type of purely factual and uncontroversial disclosures that escape strict scrutiny. The court noted that the images were not intended to convey information, as much as they were intended to evoke emotion. Based on this finding, the court analyzed the rule under a “strict scrutiny” analysis – meaning that the FDA had to show a compelling government interest and that the rule was “narrowly tailored” to achieve that interest. Here, the court didn’t worry too much about the compelling interest, because it found “under any scenario the Rule hardly appears to be narrowly tailored to achieve the Government’s purpose.” It found that the sheer size of the graphics negated any “narrowly tailored” argument. The Rule requires the graphic to occupy 50 of the front and back of the package. Coupled with the sheer content of the photos, the court found that the FDA couldn’t meet its burden. And it enjoined the enforcement of the rule. So don’t look for the gross photos.