The Butt Stops Here: The Tobacco Control Act's Anti-Smoking Regulations Run Afoul of the First Amendment

Article excerpt

I. INTRODUCTION

II. A CHRONICLE OF TOBACCO LEGISLATION: THE SLIPPERY
SLOPE OF LEGISLATION REQUIRING HEALTH DISCLAIMERS
ON CIGARETTE PACKAGING

III. THE TOBACCO CONTROL ACT'S GRAPHIC IMAGES MANDATE
AND THE FIRST AMENDMENT DIVIDE

   A. Discount Tobacco City & Lottery v. United States

   B. R.J. Reynolds Tobacco Co. v. U.S. Food and Drug
   Administration

IV. GRAPHIC IMAGES AS COMPELLED, VIEWPOINT
DISCRIMINATORY SPEECH

   A. The Commercial Speech Doctrine

   B. Compelled Commercial Speech

       1. Zauderer--Rational Basis Standard of Judicial
       Review

       2. Strict Scrutiny Review

       3. Central Hudson Intermediate Scrutiny

V. CONCLUSION

I. INTRODUCTION

Picture this: the upper body of an anonymous man, cigarette in hand, mouth parted in shame, as he exhales the ominous white smoke of his relentless habit through the black tracheotomy in the small of his neck. (1) Or perhaps, visualize: a healthy, pink, life-sustaining lung alongside a brown, disease-riddled lung, overgrown with foreign green and yellow tissue. (2) Try to envision: lips pulled back to reveal a crooked, rotting set of stained teeth, or what is left of them, with a crimson, flesh-eating wound, relentlessly devouring the raw skin surrounding it. (3) Finally, imagine: a lifeless, naked cadaver atop a crisp, white sheet, the dual cavities of his chest fastened together with a vertical row of staples, hiding the internal chaos left behind by the autopsy. (4)

Did the foregoing narratives elicit a visceral response? Did the written descriptions alone incite feelings of unease, anxiety, and trepidation? If so, imagine the intensity of the response one might experience at the sight of the actual graphic images themselves.

This October, (5) every consumer who purchases a pack of cigarettes will be forced to view these and five other graphic images, along with prominent new textual warnings, including the capitalized "1800-QUIT-NOW," the toll free phone number to a smoking cessation hotline. (6) Pursuant to a major component of the 2009 Family Smoking Prevention and Tobacco Control Act ("Tobacco Control Act" or "Act"), (7) the most comprehensive and aggressive tobaccos legislation to date, every cigarette package must soon bear one of nine color graphic images depicting the negative health consequences of smoking (9)

These nine graphic images, released by the Food and Drug Administration ("FDA") for publication on all cigarette packages this fall, were designed specifically with the intent to shock the consumer and change his or her habits. (10) They express a subjective point of view and convey a strong message, beyond the purely factual information historically printed on tobacco and cigarette packaging. (11)

Indeed, the message communicated through these highly graphic and disturbing images--namely, if you smoke, you will suffer the consequences depicted in these images--carry with them a high "fear appeal," (12) a factor that the government hopes will impact consumer decision-making. (13) In fact, studies indicate that visual stimuli with emotional imagery, such as these, create certain intensified physiological responses, including an elevated heart rate, a greater propensity for the "[s]tartle [r]eflex and the [e]yeblink," (14) and the amplification of skin conductance. (15) These physiological changes are a natural response to the emotions manifested in the pictures. (16) The pain, hopelessness, and desperation on the faces and images portrayed in color trigger an emotional response, driving thoughts, feelings, and ultimately, human behavior. (17)

Unlike the health disclaimers currently published on all cigarette packages, the Tobacco Control Act's graphic images communicate a subjective and highly controversial message, eliciting a physiological and emotional response in the viewer, (18) According to Congress, (19) these images may ultimately drive long-term smokers to quit and decrease the incidence of first-time tobacco use, especially among adolescents. …

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