Thursday, March 1, 2012
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.