Not Just Blowing Smoke

Several tobacco companies are suing the FDA, claiming that new regulations on cigarette packaging – that require graphic illustrations of the effects of smoking – are unconstitutional. The tobacco companies contend that mandating labels that include pictures of a sewn up corpse and a diseased lung violate their First Amendment rights. According to the tobacco companies: “Never before … have producers of a lawful product been required to use their own packaging and advertising to convey an emotionally-charged government message urging adult consumers to shun their products.” I suspect they are right. I can’t think of any other similar law. The tobacco companies have previously funded anti-smoking efforts, but that resulted from the settlement of the civil suits seeking damages arising from smoking related illnesses. And of course, in a civil settlement, parties can agree to pretty much whatever they choose. This, however, is not an agreement, but a set of regulations imposed by the federal government. So the First Amendment comes into play. But this is “commercial speech” and it begs the question whether there is any First Amendment protection for that type of speech. The short answer is yes there is. The longer answer is that, commercial speech gets a little less protection than other forms of speech. In order to impose this restriction, the FDA needs to show that the regulation directly advances an important interest and is no more restrictive of speech than necessary. The FDA probably wins on the first point. Stopping people from smoking advances an important interest. The savings on health care alone would nail this point. But I’m not so sure how the FDA would fare on point 2. Is it absolutely necessary to advance the government’s interest to have a mandate that is so specific, and frankly so over the top? As much as I wish no one smoked, I have to say, I like the tobacco companies’ chances in this one.