AAF Government Alert: FDA Tobacco Warnings

March 5, 2012

Posted by John Kreicbergs

As part of the National AAF's governmental efforts, we offer the latest and greatest updates from National around what's happening in Washington D.C. with regard to legislation and legal activities around advertising. We recently received this alert that we felt warranted greater awareness within our local advertising community. Read on...

AAF Members,

Earlier today [March 1, 2012], United States District Judge Richard Leon granted a permanent injunction, blocking implementation of the FDA’s graphic warnings rule for tobacco products. The rule would have confiscated the top 20% of tobacco advertisements and top half of the front and back of tobacco packaging for the display of a rotating set of graphic images.

The Judge reaffirmed his decision from last fall when he granted a preliminary injunction blocking implementation. The AAF has filed amicus briefs with the court urging it to block the warnings because they violate First Amendment protections for commercial speech. We are pleased that the Judge agrees.

Among the highlights of Judge Leon’s decision:

  • He held that the rule is subject to strict scrutiny because it constitutes compelled speech.  He quoted the plaintiffs’ reply brief for the proposition that although “the Government may engage in [] advocacy using its own voice[,] . . . it may not force others, such as Plaintiffs, to serve as its unwilling mouthpiece.”
  • The required warnings do not fit within the narrow exception of Zauderer, which permits compelled disclosure of “purely factual and uncontroversial information.”   Even for purely factual disclosures, a warning requirement may still violate the First Amendment if the requirements are “unjustified or unduly burdensome.”
  • The required FDA warnings at issue here are neither purely factual nor non-controversial.  The government’s objective of promoting cessation of smoking is “an objective wholly apart from disseminating purely factual and uncontroversial information.”  Images that “symbolize” the addictive nature of smoking or the number of smoking deaths do not promote informed choice, but only advocate the government’s position.  “[I]t is clear that the Government’s actual purpose is not to inform or educate, but rather to advocate a change in behavior – specifically to encourage smoking cessation and to discourage potential new smokers from starting.”  Judge Leon described the warnings as “gruesome images designed to disgust the consumer.”
  • Applying strict scrutiny, Judge Leon concluded that the rules neither served a compelling government interest nor were narrowly tailored to serve that interest.  Although the court found that informing or educating the public on an issue of public health “might” be compelling, “an interest in simply advocating that the public not purchase a legal product is not.”
  • As to narrow tailoring, Judge Leon found that “the sheer size and display requirements for the graphic images are anything but narrowly tailored,” and the “dimensions alone” illustrate the government’s purpose to convert cigarette packages into “mini-billboards” to promote the “obvious anti-smoking agenda.”
  • The court listed a variety of potential less restrictive alternatives such as reducing the size of the warnings, confining them to factual information, increasing cigarette taxes, or improving efforts to prevent minors from purchasing cigarettes.
  • Judge Leon chided Congress as well for failing to consider the First Amendment implications of the warnings requirement.

The case is scheduled for oral argument at the D.C. Circuit in April.  We will keep you apprised of developments.  As always, do not hesitate to contact me if you have any questions.

Clark Rector
Executive Vice President-Government Affairs
American Advertising Federation
crector@aaf.org
202-898-0089