Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, September 28, 2012

The First Amendment and Tobacco Package Warnings

Stephanie Bennett has published Paternalistic Manipulation through Pictorial Warnings: The First Amendment, Commercial Speech, and the Family Smoking Prevention and Tobacco Control Act in volume 81 of the Mississippi Law Journal (2012). Here is the abstract.

Beginning in 2012, the Family Smoking Prevention and Tobacco Control Act will require pictorial warning labels on both regular and smokeless tobacco products. The warnings contain textual statements encouraging smoking cessation as well as graphic images depicting cadavers, crying children, and cancerous lesions. As presently required by the U.S. Food and Drug Administration, the warnings both unconstitutionally compel and suppress commercial speech. The warnings violate the First Amendment under every existing Supreme Court standard for evaluating commercial speech regulations: the “reasonable relation” standard of Zauderer v. Office of Disciplinary Counsel; the strict scrutiny standard of Wooley v. Maynard; and the intermediate scrutiny standard for commercial speech disclosure and suppression expressed in Central Hudson Gas & Electric Corporation v. Public Service Commission. Rather than tax tobacco products, ban tobacco products, use removable warnings already adopted by many countries including Canada, or implement educational programs to inform consumers about the dangers of using tobacco products, the FDA has instead resorted to paternalistic manipulation of consumers and infringement upon the First Amendment rights of tobacco manufacturers.
Download the article from SSRN at the link.

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