R.J. Reynolds Tobacco Co. v. Food & Drug Administration
2012 WL 3632003, 402 U.S. App. D.C. 438, 696 F.3d 1205 (2012)
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Rule of Law:
Government regulations that compel commercial speech, specifically requiring manufacturers to display large graphic warnings intended to discourage the purchase of a lawful product, are subject to intermediate scrutiny under Central Hudson. The government bears the burden of showing that such a restriction directly and materially advances a substantial government interest with substantial evidence, not mere speculation.
Facts:
- In 2009, Congress passed the Family Smoking Prevention and Tobacco Control Act ('the Act'), granting the Food and Drug Administration (FDA) authority to regulate tobacco products.
- The Act directed the FDA to issue regulations requiring new health warnings on all cigarette packages and advertisements.
- These new warnings were mandated to include not only nine new textual statements but also 'color graphics depicting the negative health consequences of smoking'.
- The Act specified that the new warning labels must cover the top 50 percent of the front and rear panels of cigarette packages and 20 percent of cigarette advertisements.
- Pursuant to the Act, the FDA conducted a consumer study and then issued a Final Rule selecting nine graphic images to accompany the textual warnings.
- The selected images included depictions of diseased lungs, a man smoking through a tracheotomy hole, a crying woman, and a man on an autopsy table.
- The FDA also required each graphic image to include the telephone number '1-800-QUIT-NOW'.
Procedural Posture:
- Five tobacco companies, including R.J. Reynolds, filed a lawsuit against the FDA in the U.S. District Court for the District of Columbia.
- The complaint alleged that the FDA's Final Rule mandating graphic warning labels violated the First Amendment.
- The district court granted the tobacco companies' motion for a preliminary injunction, temporarily halting the rule.
- Subsequently, the district court granted the tobacco companies' motion for summary judgment, holding that the graphic warning rule was unconstitutional.
- The FDA, as the defendant, appealed the district court's summary judgment ruling to the U.S. Court of Appeals for the D.C. Circuit.
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Issue:
Does the Family Smoking Prevention and Tobacco Control Act's requirement that tobacco companies display graphic warnings on cigarette packages, as implemented by the FDA's Final Rule, violate the First Amendment's protection of commercial speech?
Opinions:
Majority - Brown, Circuit Judge
Yes, the FDA's rule requiring graphic warnings on cigarette packages violates the First Amendment. The compelled speech does not qualify for the lesser Zauderer standard because the warnings are not purely factual and uncontroversial, nor are they aimed at correcting misleading speech. Applying intermediate scrutiny under Central Hudson, the FDA failed to meet its burden of proving that the graphic warnings will directly and materially advance its stated interest in reducing smoking rates. The government provided no substantial evidence that the warnings would cause a material decrease in smoking; its own analysis predicted a statistically insignificant impact, and evidence from other countries was inconclusive. Therefore, the regulation is an unconstitutional burden on commercial speech.
Dissenting - Rogers, Circuit Judge
No, the graphic warning requirement does not violate the First Amendment. The majority applies the wrong level of scrutiny. Given the tobacco companies' long history of deceptive advertising and the factually accurate nature of the warnings, the less-exacting Zauderer standard should apply, which the rule easily satisfies. Even under Central Hudson's intermediate scrutiny, the rule should be upheld. The government has a substantial interest in effectively conveying the severe health risks of smoking. The graphic warnings, which depict the real and disturbing consequences of smoking, directly advance this informational interest. The majority improperly dismisses this interest and focuses only on reducing smoking rates, ignoring substantial evidence and common sense supporting the rule's effectiveness in communicating crucial health information.
Analysis:
This decision significantly limits the government's power to compel commercial speech for public health purposes, particularly when the message is designed to discourage the use of a lawful product. By narrowly interpreting the Zauderer standard to apply only to disclosures preventing deception, the court forces the government to meet the higher evidentiary bar of Central Hudson's intermediate scrutiny. The ruling requires the government to produce concrete, empirical evidence that a speech regulation will be effective, making it more difficult to implement novel public health warnings based on international consensus or predictive judgments. This case deepens a circuit split on the issue and signals a demanding judicial review of compelled disclosures that go beyond purely factual information.
