Court Says First Amendment Bars Enforcement of FDA Graphic Cigarette Warning Rules

Date: Nov 10, 2011

In an important First Amendment decision, on November 7, 2011, the U.S. District Court for the District of Columbia issued a preliminary injunction enjoining enforcement of a U.S. Food and Drug Administration ("FDA") rule requiring tobacco companies to display graphic images on cigarette packages. See R.J Reynolds Tobacco Co. et al v. U.S. Food and Drug Administration et al, No. 11-cv-1482 (D.D.C., Nov. 7, 2011)(memorandum opinion). The court ruled that plaintiffs demonstrated a substantial likelihood of prevailing on the merits of their claim that the mandatory graphic images unconstitutionally compel speech in violation of the First Amendment.

FDA's rule would have required the display of nine textual warnings along with certain graphic images, including a cadaver, cancerous lesions, and diseased lungs, on the top 50 percent of the front and back panels of every cigarette package beginning on September 22, 2012. See Required Warnings for Cigarette Packages and Advertisements, 76 Fed. Reg. 36,628 (June 22, 2011) ("Rule"). When it comes to compelled commercial speech, narrow exceptions do apply that allow the Government to require certain disclosures to protect consumers from confusion or deception. Courts apply a lesser standard of scrutiny to this category of compelled speech when the Government is requiring disclosure of purely factual and uncontroversial information. The court, however, found that the graphic image requirements were not the type of purely factual and uncontroversial disclosures that are reviewable under a relaxed scrutiny standard typically applied to restrictions on purely commercial speech. Rather, because the FDA was attempting to elicit an emotional response from the viewer "wholly apart from disseminating purely factual and uncontroversial information," the strict scrutiny standard of review applied.

Concluding that the primary purpose was to advocate a change in consumer behavior, not to communicate the negative effects of smoking, and that the size and display requirements for the graphic images were anything but narrowly tailored, the court held that the Government neither carried its burden of demonstrating a compelling interest, nor demonstrated how the Rule is narrowly tailored to achieve a constitutionally permissible form of compelled commercial speech. Since Plaintiffs demonstrated a substantial likelihood of prevailing on the argument that the graphic images unconstitutionally compel speech in violation of the First Amendment, the court enjoined enforcement of the Rule until fifteen months after resolution of the plaintiffs' claims on the merits. Although the Judge did not evaluate, on the merits, the constitutionality of the commercial speech that these graphic images compel, the judge noted that "when one considers the logical extension of the Government's defense of its compelled graphic images to possible graphic labels that the Congress and the FDA might wish to someday impose on various food packages (i.e., fast food and snack food items) and alcoholic beverage containers (from beer cans to champagne bottles), it becomes clearer still that the public's interest in preserving its constitutional protections – and, indeed, the Government's concomitant interest in not violating the constitutional rights of its citizens - are best served by granting injunctive relief at this preliminary stage." Thus, it is likely that any future rulings on the merits of this case will have broader implications on compelled commercial speech in food and other advertising.

This important opinion follows the recent Supreme Court decision in Brown, et. al. v. Entertainment Merchants Association, et. al., No 08-1448 (June 27, 2011), which overturned a California law prohibiting the sale or rental of violent video games to minors as a violation of the First Amendment. The court in Brown recognized that "minors are entitled to a significant degree of First Amendment protection" thereby prohibiting California's attempt to create "a wholly new category of content-based regulation that is permissible only for speech directed at children." These cases may suggest a trend of greater deference to core First Amendment rights with broader implications to other potential restrictions on speech, even where protecting children from violence or notifying consumers of serious potential health risks are involved.

For more information on advertising or privacy related issues, contact Sheila A. Millar at 202 434-4143 or via e-mail at millar@khlaw.com or Tracy P. Marshall at 202 434-4234 or via e-mail at marshall@khlaw.com.