Fair Warning? the First Amendment, Compelled Commercial Disclosures, and Cigarette Warning Labels

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Introduction: The Family Smoking Prevention and Tobacco      Control Act I. Paths to Zauderer      A. Origins of the Prohibition Against Compelled Speech      B. Commercial Speech Jurisprudence      C. Zauderer v. Office of Disciplinary Counsel of the         Supreme Court of Ohio      D. Supreme Court and Disclosure Requirements         Following Zauderer II. Tobacco Warnings and the Issue of Interpreting Zauderer      A. Conservative or Liberal Zauderer      B. Litigation Over the Tobacco Control Act's Cigarette         Warning Labels         1. Discount Tobacco City & Lottery Inc. v. United            States            a. The Discount Tobacco City Dissent         2. R.J. Reynolds Tobacco Co. v. FDA            a. The R.J. Reynolds Tobacco Dissent III. Strike a Match: Illuminating Zauderer      A. "Purely Factual and Uncontroversial"         1. The Factual Component         2. The Uncontroversial Component      B. "Reasonably Related to the State's Interest in         Preventing the Deception of Consumers".      C. "Unjustified or Unduly Burdensome Disclosure         Requirements".  Conclusion 

INTRODUCTION: THE FAMILY SMOKING PREVENTION AND TOBACCO CONTROL ACT

The United States has required cigarette packages to display warning labels since the 1960s. (1) The first warning label stated simply, "Cigarette Smoking May Be Hazardous to Your Health." (2) In 1984, Congress passed the Comprehensive Smoking Education Act requiring tobacco companies to display on every cigarette package four periodically-rotating health warnings. (3) The Act specified language for the four warning labels, (4) and required them to "appear in conspicuous and legible type in contrast by typography, layout, or color with all other printed material on the package." (5) Cigarette companies customarily printed the warnings in black and white down one side of the package. As other countries adopted more aggressive warning labels to combat smoking, the United States' regulatory structure went unchanged for twenty-five years. (6)

On June 22, 2009, President Obama signed the Family Smoking Prevention and Tobacco Control Act (7) ("Tobacco Control Act" or "Act") into law. (8) It gave the U.S. Food and Drug Administration (FDA) the authority to regulate the manufacture and sale of tobacco products. The Tobacco Control Act mandates that every cigarette package include one of nine concise phrases highlighting the deleterious effects of smoking. (9) The term "WARNING" is to be printed in all capital letters and seventeen-point font. (10) The Tobacco Control Act requires the warnings to cover the top half of both the front and back of the cigarette package. (11) Finally, the Act directed the FDA to promulgate "color graphics depicting the negative health consequences of smoking to accompany" the textual warnings. (12) The FDA was to develop the new graphic warning labels within two years. (13)

A day before the two-year deadline, on June 21, 2011, the FDA unveiled the nine new warning labels, (14) and on June 22, 2011, the FDA published its Final Rule implementing them. (15) The FDA had selected the nine graphical labels from a group of thirty-six proposed images after comprehensive studies of the effectiveness of each. (16) The chosen images included photographs and illustrations depicting a comparison of a diseased lung to a healthy lung, an autopsied torso, a set of teeth and gums ravaged by smoking, a cartoon image of child in an incubator, a close-up of a tracheotomy, a woman--perhaps a mother?--blowing smoke into a child's face, a distraught woman, a man attached to a respirator, and a man posing in a t-shirt on which is printed an anti-smoking slogan. (17) One of the statute's corresponding textual warnings respectively accompanies each image. (18) Also included in the graphic warning is the text "1-800-QUIT-NOW," the phone number for an anti-smoking hotline. (19) Under the Tobacco Control Act, the new warnings become effective fifteen months after the rule's publication. …