Graphic cigarette labels violate First Amendment

A federal rule that requires tobacco companies to display pictures of diseased lungs or other graphic images on cigarette packs is unconstitutional, a judge in Washington ruled Wednesday.

Regulations by the U.S. Food and Drug Administration would have required tobacco companies to display the images on the top half of cigarette packs, front and back. It was scheduled to take effect in September.

U.S. District Judge Richard Leon said the Obama administration failed "to convey any factual information supported by evidence about the actual health consequences of smoking through its use of these graphic images." The rule, he said, violates companies' First Amendment protections against government-compelled speech.

Several tobacco companies, including R.J. Reynolds, Lorillard and Liggett Group, filed a lawsuit against the FDA in August, challenging the rule, which stems from the 2009 Family Smoking Prevention and Tobacco Control Act.

The government can compel companies to disclose factual, uncontroversial information, to protect consumers from deception or confusion. But the compelled speech can't be overly burdensome.

Other images were of a man exhaling cigarette smoke through a tracheotomy hole in his throat; a plume of cigarette smoke enveloping an infant receiving a kiss from his or her mother; a diseased mouth afflicted with what appears to be cancerous lesions; and a man breathing into an oxygen mask.

In his ruling, Leon said that "the graphic images here were neither designed to protect the consumer from confusion or deception, nor to increase consumer awareness of smoking risks; rather, they were crafted to evoke a strong emotional response calculated to provoke the viewer to quit or never start smoking."

Leon said the government could have used far less heavy-handed means in its anti-smoking campaign, such as boosting its own anti-smoking advertisements, requiring companies to place smaller warning labels on their products and changing the images so they convey factual information.

"Unfortunately, because Congress did not consider the First Amendment implications of this legislation, it did not concern itself with how the regulations could be narrowly tailored to avoid unintentionally compelling commercial speech," Leon said.

An FDA spokeswoman declined to comment.

(Published by WSJ - February 29, 2012)