Monday, March 19, 2012

Sixth Circuit Upholds Cigarette Warning Requirements

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.


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My reading of Zauderer is that commercial speech that is not false or deceptive receives the mid-level scrutiny of the Central Hudson test. Regulation of false, deceptive commercial speech or commercial speech regarding an illegal transaction receives rational basis scrutiny. "Because appellant's statements regarding the Dalkon Shield were not false or deceptive, our decisions impose on the State the burden of establishing that prohibiting the use of such statements to solicit or obtain legal business directly advances a substantial governmental interest." (Zauderer, 471 U.S. 626 at 642.) Did the Sixth Circuit regard the federal warning label requirements as a regulation of deceptive commercial speech? I.e., that without warning labels, cigarette packages contain deceptive commercial speech?

Posted by: Jeffrey G. Purvis | Mar 20, 2012 9:20:05 AM

It seems to me that they are attempting to remedy the past misleading/ deceptive commercial speech by the cigarette companies.

Posted by: Ann | May 19, 2012 2:46:51 PM

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