Graphic Images On Cigarette Packs Are Unconstitutional Compelled Speech, Judge Says

WASHINGTON, D.C. - (Mealey's) The Food and Drug Administration's proposed graphic warnings for cigarette packs violate the First Amendment bar against compelled speech, a District of Columbia federal judge ruled Feb. 29 in granting summary judgment in favor of five tobacco companies (R.J. Reynolds Tobacco Company, et al. v. United States Food and Drug Administration, et al., No. 1:11-1482, D. D.C.; 2012 U.S. Dist. LEXIS 26257). 

(Opinion. Document #28-120321-004Z.). 

As part of the 2009 Family Smoking Prevention and Tobacco Control Act (Pub. L. No. 111-31, 123 Stat. 1776 [2009]), the FDA in June 2011 published a final rule that, among other things, requires cigarette manufacturers to print graphic images on the top halves of their cigarette packages by September 2012.  Five tobacco companies -- R.J. Reynolds Tobacco Co., Lorillard Tobacco Co., Commonwealth Brands Inc., Liggett Group LLC and Santa Fe Natural Tobacco Co. Inc. -- sued the FDA, FDA Commissioner Margaret Hamburg and Health and Human Services Secretary Kathleen Sebelius in the U.S. District Court for the District of Columbia, alleging that the rule violates the First Amendment and the Administrative Procedures Act. 

In November, the court granted the plaintiffs' motion for a preliminary injunction. 

Both parties then moved for summary judgment. 

Judge Richard J. Leon found that the nine graphic images "violate the First Amendment by unconstitutionally compelling speech." 

The images are of a man smoking a cigarette via a tracheotomy hole in his throat; a mother exhaling cigarette smoke on an infant; diseased lungs alongside healthy lungs; a mouth with what appears to be cancerous lesions; a man wearing an oxygen mask; a cadaver with autopsy stitches; a weeping woman; a man wearing a "no smoking" shirt alongside the words "I QUIT"; and a premature baby in an incubator. 

Judge Leon said "the images here neither meet the Zauderer [Zauderer v. Office of Disciplinary Counsel of Sup. Ct. of Ohio (471 U.S. 626, 651 [1985]), enhanced version available to lexis.com subscribers] standard, nor are narrowly tailored to avoid an undue burden on the plaintiffs' speech."  He said the FDA graphic-image requirements "are not the type of purely factual or uncontroversial disclosures that are reviewable under this less-stringent standard." 

"To the contrary, 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," the judge said. 

In addition, Judge Leon said the graphic images "are neither factual nor accurate."  For example, he said one image is of an autopsied body, but the government provided no support to show that autopsies are a common consequence of smoking. 

"Put simply, the Government fails to convey any factual information supported by evidence about the actual health consequences of smoking through its use of these graphic images," the judge said. 

"The images, coupled with the placement of the toll free number [1-800-QUIT-NOW], do not 'promote informed choice' but instead advocate to consumers that they should 'QUIT NOW,'" the judge wrote. 

"Thus, while the line between the constitutionally permissible dissemination of factual information and the impermissible expropriation of a company's advertising space for Government advocacy can be frustratingly blurry, here the line seems quite clear," the judge wrote. 

Judge Leon said the graphic images must withstand the strict scrutiny analysis the U.S. Supreme Court imposed on government regulations that compel speech.  He said the government fails to satisfy its burden of demonstrating that its rule is narrowly tailored to achieve a compelling government interest. 

Although the government contends that it wants to convey the consequences of smoking, Judge Leon said "it is clear that the Government's actual purpose is not to inform or educate, but rather to advocate a change in behavior -- specifically to encourage smoking cessation and to discourage potential new smokers from starting." 

"Although an interest in informing or educating the public about the dangers of smoking might be compelling, an interest in simply advocating that the public not purchase a legal product is not," the judge said.   

The sheer size of the graphic images and the display requirements "are anything but narrowly tailored," Judge Leon said.   

Judge Leon rejected the government's citation of congressional intent.  "The FDA's contention that neither it nor this Court has the authority to second-guess Congress, . . . even if the congressional mandate violates the First Amendment, is an oh-too-convenient dodge.  As the parties have conceded, there is no evidence that Congress even considered the First Amendment implications when drafting the Act." 

"To say the least, implementing a Final Rule consistent with a congressional mandate does not require a Court to hold that the Rule automatically passes constitutional muster," Judge Leon wrote. 

The judge said it is "curious" that the tobacco companies offered several alternatives to graphic images "that are easily less restrictive and burdensome for plaintiffs, yet would still allow the Government to educate the public on the health risks of smoking without constitutionally compelling speech."  He said alternatives include government-funded anti-smoking ads or press statements urging smokers to quit. 

The judge noted that the FDA recently announced $600 million in new spending on an anti-smoking multimedia campaign.   

Judge Leon said the tobacco companies also said the government could change the requirements for warning displays on cigarette packages, specifically reducing the space to 20 percent of the package surface or putting warnings on only one side of packages. 

Another alternative, the judge said, is requiring graphic images that convey only "purely factual and uncontroversial information rather than gruesome images designed to disgust the consumer."   

Lastly, the government could increase cigarette taxes or improve efforts to prevent the unlawful sale of cigarettes to minors, the judge said.  "Any one of these suggestions would be less restrictive than the Rule's current requirements." 

"Unfortunately, because Congress did not consider the First Amendment implications of this legislation, it did not concern itself with how the regulations could be narrowly tailored to avoid unintentionally compelling commercial speech," the judge concluded. 

R.J. Reynolds and Santa Fe Natural Tobacco are represented by Geoffrey K. Beach of Womble, Carlyle, Sandridge & Rice in Winston-Salem, N.C., and Noel J. Francisco and Warren Postman of Jones Day in Washington.  Lorillard is represented by Floyd Abrams, Joel L. Kurtzberg and Kayvan Sadeghi of Cahill, Gordon & Reindel in New York and Scott D. Danzis of Covington & Burling in Washington. 

Commonwealth Brands is represented by Philip J. Perry of Latham & Watkins in Washington.  Liggett is represented by Jonathan D. Hacker of O'Melveny & Myers in Washington. 

The government is represented by Drake S. Cutini and Daniel K. Crane-Hirsch of the U.S. Justice Department in Washington. 

Amici Association of National Advertisers and the American Advertising Federation are represented by Robert Corn-Revere of David Wright Tremaine in Washington.  Amicus Washington Legal Foundation is represented by Richard A. Samp of the Washington Legal Foundation in Washington. 

Amici American Academy of Pediatrics, American Cancer Society, American Cancer Society Cancer Action Network, American Heart Association, American Legacy Foundation, American Lung Association, American Medical Association, American Public Health, Campaign for Tobacco-Free Kids and Public Citizen are represented by Gregory A. Beck of Public Citizen Litigation Group in Washington. 

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