Constitutional Law - First Amendment - Compelled Commercial Speech - D.C. Circuit Holds That FDA Rule Mandating Graphic Warning Images on Cigarette Packaging and Advertisements Violates First Amendment

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CONSTITUTIONAL LAW--FIRST AMENDMENT--COMPELLED COMMERCIAL SPEECH--D.C. CIRCUIT HOLDS THAT FDA RULE MANDATING GRAPHIC WARNING IMAGES ON CIGARETTE PACKAGING AND ADVERTISEMENTS VIOLATES FIRST AMENDMENT.--R.J. Reynolds Tobacco Co. v. Food & Drug Administration, 696 F.3d 1205 (D.C. Cir. 2012).

In 2009, Congress granted the Food and Drug Administration (FDA) regulatory authority over tobacco products through the Family Smoking Prevention and Tobacco Control Act (1) (Tobacco Control Act). The Act requires, among other things, that the FDA issue a rule selecting "color graphics depicting the negative health consequences of smoking." (2) These graphic warnings, together with nine new textual warnings drafted by Congress, are required to appear on the top half of all cigarette packaging and on twenty percent of the area of print advertisements. (3) The tobacco industry swiftly launched legal challenges. (4) Recently, in R.J. Reynolds Tobacco Co. v. FDA, (5) a divided D.C. Circuit panel held that the FDA's final rule (6) violated the First Amendment. (7) The court's decision relied on a plausible but undesirably narrow interpretation of a key precedent that governs compelled commercial disclosures. This precedent did not preordain the majority's determination of the governmental interests at stake in the FDA's rule, or its analysis of the misleading or deceptive nature of the tobacco advertising targeted by the rule. A broader interpretation would have maintained principled limits on the government's ability to mandate commercial disclosures, while more faithfully honoring the commercial speech doctrine's central concern: that consumers' decisions "be intelligent and well informed." (8)

For nearly fifty years, the federal government has required some form of health warning on tobacco packaging and advertisements. (9) Congress passed the Tobacco Control Act in part to reform the warning language that had not been updated since 1984, (10) which Congress found insufficiently apprised consumers of the scope and severity of smoking's negative health consequences. (11) While certain segments of the population properly understand smoking's health risks and the content of the required warning labels, the FDA found that adolescents and people with less education significantly underestimate the dangers of smoking and fail to fully comprehend text-only warning messages. (12) Congress also found that "[v]irtually all new users of tobacco products are under the minimum legal age to purchase such products," and that "[t]obacco advertising and marketing contribute significantly to the use of nicotine-containing tobacco products by adolescents." (13) On June 22, 2011, the FDA issued its final rule with new text and image warning requirements for cigarette packaging and advertising. (14)

On August 16, 2011, five tobacco companies filed suit in the U.S. District Court for the District of Columbia against the FDA, claiming the graphic warning images rule violated the First Amendment and the Administrative Procedure Act. (15) On February 29, 2012, Judge Leon held that the rule violated the First Amendment by "unconstitutionally compelling speech." (16) Judge Leon first noted that "compelled speech is 'presumptively unconstitutional,'" (17) and is typically subjected to strict scrutiny. He acknowledged that exceptions exist in "the arena of compelled commercial speech" (18) and described the standard of review the Supreme Court set out in Zauderer v. Office of Disciplinary Counsel. (19) In Zauderer, the Court held that requirements to disclose factual commercial information would be subjected to something resembling rational basis review: to pass constitutional muster, the requirements must be "reasonably related to the State's interest in preventing deception of consumers." (20) Finding that the graphic warnings requirement was not akin to the disclosure in Zauderer, Judge Leon instead subjected the graphic warnings to strict scrutiny, which they did not survive. …