Monday, March 19, 2012
A divided three-judge panel of the Sixth Circuit today rejected the plaintiffs' facial challenge of the warning requirements for cigarette packaging and cigarette advertising in the federal Family Smoking Prevention and Tobacco Control Act. The court ruled that the warning requirements did not violate the First Amendment on their face.
The case, Discount Tobacco City & Lottery, Inc. v. U.S., involved a facial challenge to the Act's graphic-warning provision, which mandates that the FDA "require color graphics depicting the negative health consequences of smoking" to accompany the textual warnings on cigarette packaging and advertising.
The court applied Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio rational-basis test and wrote,
Faced with the evidence that the current warnings ineffectively convey the risks of tobacco use and that most people do not understand the full risks, the Act's new warnings are reasoanbly related to promoting greater public understanding of the risks. A warning that is not noticed, read, or understood by consumers does not serve its function. The new warnings rationally address these problems by being larger and including graphics.
Op. at 76.
The Sixth Circuit's ruling is not directly at odds with the recent D.C. district court decision striking down the FDA's required warning labels under the First Amendment, R.J. Reynolds Tobacco Co. v. FDA. That's because today's ruling dealt only with a facial challenge to the Act, not to the FDA's rules. The court explained:
Moreover, the dissent's reliance on the recent D.C. district court opinion actually undercuts the dissent's conclusion that the Act's required warnings are facially unconstitutional. As the dissent acknowledges, the district court in the D.C. case examined the "government's proposed color graphics images"--namely, the final nine images the FDA settled on when it issued its Final Rule. The distinction drawn by the D.C. court between the graphic-warning requirements of the FDA's Rule and the graphic-warning requirements of the Act is a crucial one that the dissent's analysis glosses over. The flaw caused by ignoring this distinction is that the characteristic of the FDA-chosen images that the dissent finds objectionable--namely, that the images provoke a visceral response in the audience--is simply not in the statute. The dissent reads that characteristic as something required by the face of the statute when the statute on its face requires no such thing. The Act simply requires "color graphics depicting the negative health consequences of smoking."
Op. at 83.