15-Second Advertising Law Alert: Required Graphic Cigarette Labeling Held Unconstitutional

The U.S. Food and Drug Administration's rule mandating the use of dramatic graphic images on cigarette labeling was found unconstitutional recently.^*

Background

The Family Smoking Prevention and Tobacco Control Act of 2009, among other things, mandated that the top 50 percent of cigarette packages be used only for certain textual warnings (e.g., "Smoking can kill you") and color graphics depicting the negative health consequences of smoking. FDA was directed to devise the images.

The ensuing FDA regulations were to be effective for all cigarettes introduced in commerce on or after October 22, 2012. They required the rotating appearance of nine graphic images on the packs. These were chosen by FDA primarily for their "ability to evoke emotion." One, for example, is of a man exhaling smoke through a tracheotomy hole in his throat.

The four tobacco company plaintiffs alleged that the mandated images, when combined with required text warnings, amounted to compelled speech in violation of the First Amendment. Basically, their theme was that the government may use its voice for advocacy, but it may not force others "to serve as its unwilling mouthpiece."

Last November, the court granted plaintiffs' motion for a preliminary injunction, presaging a judicial kiss of death. The parties filed cross-motions for summary judgment.

Decision

Plaintiffs' motion was granted. The court found that such compelled speech was "presumptively unconstitutional." The narrow exceptions that allow government-mandated disclosures may only require "purely factual and uncontroversial information." Here, the images were crafted to motivate consumers to quit smoking or never start. Moreover, the court found that the images were inaccurate and did not convey the statutorily-required factual information about the health consequences of smoking.