June 19, 2018
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Analysis: Tobacco firms smoking mad about graphic labels

U.S. Food and Drug Administration | AP
U.S. Food and Drug Administration | AP
This combo made from file images provided by the U.S. Food and Drug Administration shows two of nine new warning labels cigarette makers will have to use by the fall of 2012. Four of the five largest U.S. tobacco companies sued the federal government Tuesday, Aug. 16, 2011, over the new graphic cigarette labels, saying the warnings violate their free speech rights and will cost millions of dollars to print.
By Ken Paulson, First Amendment Center

U.S. tobacco companies are fighting back against new federal regulations that require graphic warnings on cigarette packs.

Arguing that to compel grisly images on cigarette packaging violates their First Amendment rights, the companies are asking that the FDA requirements be invalidated.

“Never before in the United States 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,” the companies’ lawsuit asserts, according to The Associated Press.

Nine new warnings are required by the FDA; they’re rotated throughout the packaging.
They’re also not subtle. Images include damaged lungs, cancer and a corpse, along with pointed messages about the dangers of smoking. The new warnings dominate the packaging with warnings on the entire top half of the pack, front and back.

The lawsuit, filed in federal court by R.J. Reynolds, Santa Fe Natural Tobacco, Liggett, Lorillard and Commonwealth, will involve a number of First Amendment considerations, including:

  • Commercial speech has First Amendment protection, but not quite as much as other kinds of speech.
  • Businesses have First Amendment rights, but a handful of products and professions have traditionally been subject to greater regulation of packaging and marketing. Among them: liquor and tobacco, law and real estate. The restrictions are generally imposed on grounds of consumer protection or public safety.
  • The freedom to speak includes the right not to be forced to say anything against your will. In this case, tobacco manufacturers will claim that compelling them to say something on their packs violates the First Amendment.
  • The size of the graphics is also likely to be an issue. They so dominate packaging as to leave relatively little space for manufacturers to convey their own marketing messages to prospective buyers.

Courts have long upheld mandated warnings in narrow areas of consumer protection and safety, but the new FDA warnings require unprecedented levels of scope and visibility.
In the end, this case will pit free speech and free enterprise against government’s interest in protecting the public’s health.

Ken Paulson is president and chief executive officer of the First Amendment Center. Previously, Paulson served as editor and senior vice president for news of USA Today and USATODAY.com.

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