Friday, August 24, 2012

D.C. Circuit Rules FDA Cigarette Labels Unconstitutional

A sharply divided three-judge panel of the D.C. Circuit ruled in R.J. Reynolds Tobacco Co. v. FDA that the FDA's new regulations requiring textual warnings and graphic pictures depicting the negative health consequences of smoking violate the First Amendment.  The ruling affirms an earlier ruling by Judge Richard Leon (D.D.C.), but applying a different level of scrutiny.

The panel split, together with the several different opinions (including Judge Leon's) as to the appropriate level of scrutiny, make this case a likely candidate for en banc review and, ultimately, Supreme Court review.  The case offers a good opportunity to clarify the level of scrutiny for compelled speech that seems both commercial and non-commercial in different ways.  In determining the standard, this case also offers a good opportunity to decide how to interpret Zauderer's correction-of-misleading-speech: Does Zauderer's rational basis review apply only when the government compels speech to correct currently misleading speech (as the majority says); or does it also apply when the government compels speech to correct historically misleading speech (as the dissent argues)?  Finally, the case also offers a good opportunity to apply a level of scrutiny, where the compelled speech--including graphic pictures--is designed to inform consumers of the dangers of smoking and to reduce smoking.


Those questions were front and center for the D.C. Circuit.  Judge Brown wrote the opinion, ruling that the Central Hudson intermediate scrutiny test was the appropriate standard.  (The court thus rejected the Zauderer rational basis test, for largely the same reasons that Judge Leon rejected that test: because FDA's pictures were not designed to correct the same kind of misleading speech at issue in Zauderer and its progeny.  But the court also rejected strict scrutiny (Judge Leon's test), saying that circuit law required application of Central Hudson's intermediate standard.)

Judge Brown wrote that the FDA's compelled textual warnings and graphic pictures were simply not sufficiently tailored under Central Hudson to meet its two interests--even if those interests were substantial.  As to the FDA's interest in reducing smoking, the court ruled that the FDA failed to produce any evidence showing that pictures like this would cause smokers to quit and persuade non-smokers not to start.  As to the FDA's interest in "effectively" informing consumers of the harms of smoking, the court said that this was too vague an interest and would allow the FDA itself to define "effectively," ultimately "render[ing] Central Hudson's 'substantial interest' requirement a complete nullity" and "eviscerat[ing] the requirement that any restriction 'directly advance' that interest."  Op. at 29.  

Judge Rogers dissented, arguing that the court didn't take sufficient account of the government's informational interest and that the compelled speech, with the exception of the inclusion of the toll-free number "1-800-QUIT-NOW," satisfied either Zauderer's rational basis review or Central Hudson's intermediate scrutiny.  (Judge Rogers argued first that the compelled speech was accurate and designed to correct the tobacco companies' "decades-long campaign to deceive consumers" and thus fell squarely within Zauderer.  Judge Brown rejected this approach, looking only to whether the tobacco companies' here-and-now statements were misleading.)  Judge Rogers wrote that the FDA had amassed volumes of evidence showing that its warnings and pictures would best get consumers' attention and inform them of the dangers of smoking.


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When we study regulation of commercial speech, I ask my students to consider what "directly advance" means, as an analytical standard. The only way it has useful meaning, to me, is that it is a measure of the degree (theoretically, on a zero to 100 percent scale) that the regulation advances the government's (substantial) interest. Somewhere on that continuum, a regulation doesn't work well enough to accomplish the government's goal, and thus does not "directly" advance that goal. (Attempting to parse direct versus indirect in any qualitative sense rapidly becomes metaphysical.) So how does the federal court expect the government to prove that graphic images of tobacco-induced disease accomplishes the government's purpose (to dissuade people from smoking) to a sufficient degree? Scientific studies establishing a causal relationship between warnings and decisions not to smoke? Like the ones that supported regulations prohibiting tobacco advertizing from television and radio? In what other context is the government required to be scientific--in proving that allowing LBGT persons to marry each other will somehow diminish "traditional" heterosexual marriage? In proving that use of peyote in religious practice by Native Americans will stimulate the market for recreational peyote use? In proving that speech containing non-obscene sexual content is somehow correlated with public drunkenness, prostitution and other ills? In proving that public nudity is harmful to the public? What rule of law describes the obligation of the government to base regulation on scientific or other proofs?

Posted by: Jeffrey G. Purvis | Aug 25, 2012 10:38:46 AM

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