Thursday, April 25, 2013
David Daniel Coyle, Emory University School of Law, has published Smoke and Mirrors: First Amendment Protection of Commercial Speech and the FDA's New Graphic Warning Labels for Tobacco. Here is the abstract.
In response to harms caused to public health by tobacco consumption, Congress passed the Family Smoking Prevention and Control Act. This Act required the FDA to issue regulations requiring that graphic warning labels be put on tobacco products and advertisements to accompany the already existing textual warnings. Several tobacco companies challenged the graphic warning label requirement as a First Amendment violation of their commercial speech rights. The Sixth Circuit in Discount Tobacco City & Lottery, Inc. v. United States, upheld the graphic warning label requirement, while the D.C. Circuit in R.J. Reynolds Tobacco Co. v. FDA, struck down the graphic warning labels as violations of the First Amendment.
This article explores the graphic warning labels in the context of the Supreme Court’s commercial speech, First Amendment precedents. This article questions the current commercial speech framework embodied by the tests laid down in Zauderer v. Office of Disciplinary Counsel of Supreme Court and Central Hudson Gas & Electric Corp. v. Public Service Commission, and ultimately suggests a new, more optimal framework. The new framework developed in this paper would apply strict scrutiny to government regulations restricting commercial speech, while applying a rational basis review to government regulations that compel truthful commercial disclosures so long as an information gap exists. Finally, this article contributes to the body of law and academic literature addressing commercial speech by arguing that the graphic warning labels should be upheld not only under Zauderer and Central Hudson, but also under the more optimal framework developed in this article.
Download the full text of the paper from SSRN at the link.