A Disclosure-Focused Approach to Compelled Commercial Speech

Article excerpt

In 2010, the Food and Drug Administration passed a rule revising compelled disclaimers on tobacco products pursuant to the Family Smoking Prevention and Tobacco Control Act. The rule required that tobacco warnings include something new: all tobacco products now had to bear one of nine graphic images to accompany the text. Tobacco companies filed suit contesting the constitutionality of the rule, arguing that the government violated their right to free commercial speech by compelling disclosure of the graphic content. Yet First Amendment jurisprudence lacks a doctrinally consistent standard for reviewing such compelled disclosures. Courts' analyses typically depend on whether the regulation compels or restricts speech, how far that regulation extends, and why the government chose to regulate in the first place. This Note seeks to articulate a coherent standard-a disclosure-focused approach-for reviewing compelled commercial speech under the First Amendment. Under this disclosure-focused approach, courts would adopt a lenient standard of review for compelled disclosures of factual, uncontroversial information while reserving more exacting scrutiny for restricted speech or compelled ideological disclosures. This approach centers on the structure and content of the regulation rather than the governmental motive. Accordingly, the disclosure-focused approach aligns with the goal of commercial speech protection-namely, maximizing the information available to consumers.

Introduction

Does the Constitution prevent the government from requiring cigarette companies to tell the truth? In 2009, Congress passed the Family Smoking Prevention and Tobacco Control Act ("FSPTCA").1 Pursuant to that legisla- tion, the Food and Drug Administration ("FDA") began to toughen regula- tion of tobacco companies, particularly with respect to product marketing and packaging. As part of the crackdown on these companies' commercial messaging, the FDA imposed a requirement that each package of cigarettes bear one of nine graphic images, each accompanied by a different written warning about the effects of tobacco use.2 The nine warnings selected by the FDA appear as follows3:

To ensure the message reached consumers, the FDA imposed additional requirements regarding the size and placement of the images on the package.4

Tobacco companies filed suit, arguing that the graphic warnings re- quirement violated their right to free speech and was therefore unconstitu- tional.5 The companies' claims were rooted in First Amendment doctrine and its limited protection of "commercial speech," or speech by a commer- cial vendor to a consumer.6 In Discount Tobacco City & Lottery, Inc. v. United States, the Sixth Circuit applied a rational basis standard to review com- pelled disclosures.7 The court found that the statutorily required graphic warnings reasonably related to the government's interest in preventing con- sumer deception and did not unconstitutionally violate the companies' right to free commercial speech.8 Months later, however, the D.C. Circuit, in R.J. Reynolds Tobacco Co. v. FDA, employed a more stringent intermediate scru- tiny that had been traditionally applied to restrictions on commercial speech.9 Applying that standard, the D.C. Circuit held that because the graphic warnings were unduly restrictive and did not directly advance a sub- stantial governmental interest, the rule violated the plaintiffs' First Amend- ment rights.10 Accordingly, the D.C. Circuit invalidated the rule under the Administrative Procedure Act.11

In one sense, these two decisions address separate issues. Discount To- bacco upheld the FSPTCA provision requiring graphic warnings.12 R.J. Reyn- olds, by contrast, overturned the FDA's implementation of that provision.13 But on one common question-which standard of review to use when eval- uating whether a compelled disclosure passes First Amendment scrutiny- the courts gave different answers: Discount Tobacco applied a variation of rational basis review while R. …