Friday, September 28, 2012
Danielle Weatherby, Whiteman, Osterman & Hanna, and Terri Day, Barry University School of Law, have published The Butt Stops Here: The Tobacco Control Act’s Anti-Smoking Regulations Run Afoul of the First Amendment in volume 76 of the Albany Law Review (2012). Here is the abstract.
This paper discusses the First Amendment implications of the graphic images provision of the Family Prevention Tobacco Act of 2009, which requires tobacco companies to display these images plus a 1-800-QUIT-NOW number on 50% of the front and back of cigarette packages. This mandate goes way beyond the type of compelled disclosures which pass First Amendment scrutiny, when the statements are factual and are intended to dispel consumer confusion about a product. Under Supreme Court precedent, these factual disclosures are subject to limited judicial review, even lower than the intermediate scrutiny applied to commercial speech regulations. Because the graphic images are not factual statements meant to dispel consumer confusion, this lower standard of review should not apply. A recent Supreme Court case held that strict scrutiny applies to content-based regulations, even in the commercial context. Therefore, this article proposes that the question of whether these graphic images violate the First Amendment is subject to strict scrutiny judicial review. Under this standard, the government cannot establish the least restrictive means prong of strict scrutiny. There are other means available to the government to effectuate its goal of reducing teen smoking and encouraging adult abstinence. Government cannot “conscript” private companies into being a “mini-billboard” for the government’s anti-smoking message. Two Circuit Courts of Appeals have addressed the First Amendment issue presented by the graphic images provision. There is a split in the Circuits. Given the split in the Circuits and the potential “slippery slope” of government using speech regulations to control unhealthy habits, this case will probably reach the Supreme Court. If these graphic images pass First Amendment scrutiny, the next thing we might see are pictures of fat people or clogged arteries on Lay’s potato chip packages.Download the article from SSRN at the link.