Thursday, March 1, 2012

Court Says FDA Warnings Violate First Amendment

Judge Richard J. Leon (D.D.C) ruled yesterday in R.J. Reynolds Tobacco Co. v. FDA that the FDA's required warning labels on cigarette packs violate free speech and granted summary judgment in favor of the tobacco companies that sued to stop them.  Judge Leon also permanently enjoined the FDA from enforcing these warning labels and enjoined the FDA from enforcing new, constitutional warning labels against the plaintiffs for 15 months after the FDA finalizes those new labels. 

The ruling was hardly a surprise.  Judge Leon issued a temporary injunction last November based in part on the plaintiffs' likelihood of success on their First Amendment claim.  He adopted very similar reasoning yesterday--that the warning labels do not communicate information (instead, they advocate a position), that they are therefore not compelled commercial speech under Zauderer v. Office of Disciplinary Counsel, and, as non-commercial compelled speech, they do not satisfy strict scrutiny. 


Here's Judge Leon on why the labels do not communicate information, but instead advocate a position (taking them out of the Zauderer framework):

To the contrary, the graphic images here were neither designed to protect the consumer from confusion or deception, nor to increase consumer awareness of smoking risks; rather, they were crafted to evoke a strong emotional response calculated to provoke the viewer to quit or never start smoking.  Indeed, a report by the Institute of Medicine--an authority chiefly relied upon by the Government--very frankly acknowledges this very purpose. . . .

Further, the graphic images are neither factual nor accurate.  For example, the image of the body on an autopsy table suggests that smoking leads to autopsies; but the Government provides no support to show that autopsies are a common consequence of smoking.  Indeed, it makes no attempt to do so.  Instead, it contends that the image symbolizes that "smoking kills 443,000 Americans each year."

Here's Judge Leon on why the government end is not compelling:

Although an interest in informing or educating the public about the dangers of smoking might be compelling, an interest in simply advocating that the public not purchase a legal product is not.

And finally, here's Judge Leon on narrowly tailoring:

As I noted previously, "the sheer size and display requirements for the graphic images are anything but narrowly tailored." . . .

[W]ith respect to the content of the graphic images, it is curious to note that plaintiffs have offered several alternatives that are easily less restrictive and burdensome for plaintiffs, yet would still allow the Government to educate the public on the health risks of smoking without unconstitutionally compelling speech.

Judge Leon also noted that according to the legislative record Congress didn't consider First Amendment problems with the authorizing act.


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The most important quote from the decision:

First, after reviewing the evidence here it is clear that the Rule's graphic-image
requirements are not the type of purely factual and uncontroversial disclosures that are
reviewable under this less stringent standard. 12 To the contrary, the graphic images here
were neither designed to protect the consumer from confusion or deception, nor to
increase consumer awareness of smoking risks; rather, they were crafted to evoke a
strong emotional response calculated to provoke the viewer to quit or never start
smoking. Indeed, a report by the Institute of Medicine-an authority chiefly relied upon
by the Government-very frankly acknowledges this very purpose. See Defs.' Opp'n at
vi; Institution of Medicine, "Ending the Tobacco Problem: A Blueprint for the Nation"
(Richard J. Bonnie ed. 2007) ("10M Report") at 290-91. According to the 10M Report,
"[i]t is time to state unequivocally that the primary objective of tobacco regulation is not
to promote informed choice but rather to discourage consumption of tobacco products,
especially by children and youths, as a means of reducing tobacco-related death and
disease." 10M Report at 291. Further, "[e]ven though tobacco products are legally
available to adults, the paramount health aim is to reduce the number of people who use
and become addicted to these products, through a focus on children and youths," and,
therefore, the "warnings must be designed to promote this objective." Jd.

Unfortunately, the analysis of this situation stops there, when it cries out to be taken even deeper. To make a long story short, the Government's entire anti-tobacco operation, for the last six decades, has been systematically designed to deceive the public about the health risks of smoking, in order the promote that objective of stopping people from smoking. The government deliberately commits scientific fraud, primarily by purposely using defective studies to falsely blame tobacco for diseases that are really caused by infection, and concealing or ignoring the relevant evidence.

Furthermore, rather than being an objective authority on the issue, the FDA's Tobacco Panel is itself nothing but an operation connected with this gigantic fraud. All the anti-smokers'so-called "independent" reports were ring-led by the same guy, Jonathan M. Samet, including the Surgeon General Reports, the EPA report, the IARC report, and the ASHRAE report, and he's now the chairman of the FDA Committee on Tobacco. He and his politically privileged clique exclude all the REAL scientists from their echo chamber. That's how they eliminated controversy and made their reports "unanimous!"

For the government to commit fraud to deprive us of our liberties is automatically a violation of our Constitutional rights to the equal protection of the laws, just as much as if it purposely threw innocent people in prison. And for the government to spread lies about phony smoking dangers is terrorism, no different from calling in phony bomb threats. This is a travesty of law as flagrant as in any totalitarian dictatorship!

Posted by: Carol T | Mar 5, 2012 5:06:14 AM

While I hold a personal stance against the marketing of cigarettes altogether, I think the Court made the right decision in this case.

Posted by: Darryl Walker, Jr. | Mar 5, 2012 10:49:23 AM

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