Cigarette Warning Labels: Balancing Public Health and Free Speech

Dina Rosin (CMC ’20)

The Family Smoking Prevention and Tobacco Control Act (FSPCTA) became a federal law in 2009. The act, among other measures, required the Food and Drug Administration (FDA) to create graphic warning labels to be displayed on cigarette packing throughout the country. These labels contain “color graphics depicting the negative health consequences of smoking.” The labels are generally disliked by cigarette companies as they deter consumers from buying the product, and many companies in the tobacco industry filed lawsuits to attempt to prevent the implementation of the FSPCTA. These graphic warning labels serve as an example of companies halting federal legislation by way of the courts, as well as an example of governmental control on private companies.

A main objection to the graphic warning labels is the nature of the labels themselves. They display grotesque images, such as a diseased lung, a corpse, rotting teeth or a laryngectomy. Because of the scary nature of these warnings, they are empirically more effective in deterring users than text warnings alone. A study conducted in Canada found that after the country mandated graphic warning labels, smoking rates declined 3 to 5 percentage points. Currently, more than 100 nations require these graphic warning labels on cigarette packaging. The 2009 federal law, which was implemented as a public health measure, required tobacco companies to use color images covering more than half of each package of cigarettes, and 20% of the space on cigarette advertisements. Congress, with this law, was effectively balancing public health interests with the companies’ rights to free speech.

In 2009, many major manufacturers of cigarettes filed lawsuits against the United States and the FDA on the basis that the restrictions of the FSPTCA infringed on the company’s first amendment rights. This supported the notion that these graphic warning labels extend beyond a reasonable means of informing U.S. consumers of the risks associated with smoking. The FDA released nine new warning labels in June of 2011, which was the first change to U.S. cigarette packaging in 25 years, and were to go into effect in September 2012. Multiple courts ruled that the FSPTCA was unconstitutional, and granted a postponement to the implementation of these warning labels. However, the Sixth Circuit Court of Appeals concluded that the law was constitutional in their ruling for Discount Tobacco City & Lottery v. FDA. The Supreme Court, on April 22, 2012, upheld the Sixth Circuit Court’s ruling, effectively overriding the other courts’ argument that the FSPTCA’s graphic labeling clause was unconstitutional, and allowing for the implementation of mandatory graphic warning labels.

Despite the go-ahead from the Supreme Court given over five years ago, the FDA has still yet to mandate graphic warning labels on cigarette packaging. An FDA spokesperson commented that the agency “will undertake research to support a new rulemaking consistent with the Family Smoking Prevention and Tobacco Control Act.” This diplomatic phrasing suggests no timeline currently exists for the implementation of this new protocol, despite being part of federal law. Though the cigarette companies ultimately lost in court, it appears that they were effectively able to stop the graphic labels from being mandated.

There is little evidence to suggest that the Trump Administration will enforce the use of graphic warning labels. Yet, battle in the courts suggests that the federal government can effectively limit a company’s freedom of speech in the interest of public health in certain situations. This is not the only case in which the federal government has balanced the right to free speech with concerns for public health and safety. For example, the courts have limited free speech when it presents a clear and present danger, is considered obscene or constitutes hate speech. However, this conflict calls into question the extent to which the first amendment applies to individual companies. It has yet to be seen if the FDA will enforce these graphic warning labels, suggesting that companies were successful in using the courts to change a government decision.

 

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