Medical Pornography of Fair Warning: Should the United States Adopt Canada's Gruesome New Tobacco Labels?

Article excerpt

I. INTRODUCTION

In 2000, Canada introduced anti-tobacco regulations1 under its Tobacco Act2 that require warning messages to cover up half of all cigarette packages.3 The regulations took effect in January 2001.4 The warning messages range from graphic images of diseased hearts and cancerous lungs,5 to pictures of drooping cigarettes that read: "cigarettes may cause sexual impotence due to decreased blood flow to the penis. This can prevent you from having an erection."6 Senator Dick Durbin (D-IL) and Representative Jim Hansen (R-UT) both want to introduce legislation similar to the Canadian regulations in the United States.7

If Congress approves such legislation, and if the President signs it into law, will it survive a constitutional challenge? Will the Supreme Court find that the legislation violates the Constitution? Or, will the Supreme Court find that the labels are constitutionally acceptable? This Note will address these questions.8 Ultimately, this IMAGE FORMULA4

Note will argue that the proposed warning labels will not pass constitutional muster in the United States, and thus, the tobacco companies will be able to breathe a little easier.9

Numerous Supreme Court cases have dealt with commercial speech as it relates to the First Amendment. An essential case for commercial speech analysis is Central Hudson Gas & Electric v. Public Service Commission.10 It sets forth a four-part inquiry to determine whether restrictions on commercial speech are permissible.11 First, the expression must concern lawful activity and must not be misleading.12 Second, the restrictions must advance a substantial government interest.13 Third, the restriction must directly and materially advance that interest.14 Finally, the regulation cannot be more extensive than necessary.15

The Supreme Court has decided a line of cases that further developed and applied the Central Hudson standard. In 44 Liquormart, Inc. v. Rhode Island,16 the Court held that a statute that prohibited the advertisement of liquor prices advanced a substantial government interest.17 However, the prohibition was more extensive than necessary, and therefore violated First Amendment rights.18 This Note will argue that while the proposed tobacco legislation deals with a substantial government interest, forcing tobacco companies to put disturbing images on their packages does not directly advance that interest, and the proposed legislation is far too extensive.19 Therefore, it would violate First Amendment rights.20

The issue involved in this Note, however, is not exactly the restriction of commercial speech, but rather, the compulsion of commercial speech.21 Cases such as Glickman v. Wileman Brothers & Elliott, Inc.22 and Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio23 address the issue of compelled speech.24 In Wileman Bros., the Supreme Court held that compelling fruit growers to fund generic fruit advertising did not violate the fruit grower's First Amendment rights.25 This Note will distinguish that case from the compelling of cigarette makers to put disgusting images on their boxes.26

In Zauderer the Supreme Court asserted that "in some instances compulsion to speak may be as violative of the First Amendment as prohibitions on speech."27 In IMAGE FORMULA6

discussing disclosure requirements as compelled speech, the Court "recognize[d] that unjustified or unduly burdensome disclosure requirements might offend the First Amendment by chilling protected commercial speech."28 Putting diseased lungs and limp cigarettes suggestive of impotence on the product is certainly an "unjustified" and "unduly burdensome" requirement.29

Recently, the First Circuit Court of Appeals upheld strict new regulations in Consolidated Cigar Corp. v. Reilly.30 Part of the regulations that were upheld required tobacco companies to cover at least twenty-five percent of the front of cigar boxes with warning labels. …