On February 29, 2012, a federal judge ruled that the FDA’s new graphic images and text warnings for cigarette packaging and cigarette advertisements violate the First Amendment of the U.S. Constitution. The ruling states that the FDA is permanently enjoined from enforcing the proposed graphic images and text warnings for a period of 15 months following the issuance of new warnings by the FDA that are valid and permissible under the United States Constitution and federal law.
The five major tobacco manufacturers that brought this lawsuit against the FDA include R.J. Reynolds Tobacco Company, Lorillard Tobacco Company, Commonwealth Brands, Inc., Liggett Group LLC and Santa Fe Natural Tobacco Company, Inc. The main claim made by the tobacco manufacturers in this lawsuit is that the FDA’s graphic image warnings violate the First Amendment to the U.S. Constitution, which protects free speech, including commercial speech such as advertising.
This constitutional protection extends to both the right to speak freely and the right to not speak at all. When the government mandates that a company make a statement that the business would not otherwise make if it had a choice, this type of speech is known as "compelled speech" and is presumptively unconstitutional.
For compelled speech to be constitutional, a government can only mandate that a company provide factual and uncontroversial information to consumers about its products. An example of such factual statements is the current Surgeon General warnings on cigarette packages.
In the court’s decision, the judge found that “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.”
That is, the FDA’s main objective was not to give the public factual information about smoking in order to make an informed choice, but rather to advocate for a change in an individual’s behavior; namely, to never start smoking or to quit smoking.
By using cigarette packaging and advertising to deliver a shocking and emotional message through graphic images, the FDA crossed the line “between the constitutionally permissible dissemination of factual information and the impermissible expropriation of a company’s advertising space for Government advocacy….” In other words, the FDA was unlawfully requiring the tobacco manufacturers to “speak" to their customers through the graphic image warnings by telling them not to purchase legal tobacco products.
Moreover, the judge states that there are numerous alternatives to the large graphic images that would be more narrowly tailored such as reducing the warnings to 20 percent of the packaging space, requiring warnings only on the front or back of packages, selecting graphics that convey only factual and uncontroversial information, and improving efforts to prevent the unlawful sale of cigarettes to minors.
The court ruling means that the graphic image health warnings, which were scheduled to go into effect in September of 2012, will now be delayed for 15 months beyond the date that the FDA issues a new set of constitutionally permissible warning labels. However, the FDA can appeal this court decision to the U.S. Circuit Court of Appeals. This means that the final outcome of the graphic warning label issue will not be known for the foreseeable future.