Government mandated product labeling applies to lots of products in the United States, including cigarettes. The Fair Packaging and Labeling Act, which was enacted in 1967. It directs the Federal Trade Commission and the Food and Drug Administration to issue regulations requiring that all consumer commodities be labeled to disclose net contents, identity of commodity, and name and place of business of the products manufacturer, packer, or distributor. The act authorizes additional regulations where necessary to prevent consumer deception. When the Food and Drug Administration tells a company what needs to go on their label, and what can’t go on it, that is a violation of the company’s First Amendment rights, and by the end of this paper you will know many reasons why.
In June 2011, the Food and Drug Administration established a rule requiring tobacco manufacturers to place warning labels that cover 50% of the surface of the front and back of cigarette packages, as well as warning labels covering 20% of the area of cigarette advertisements. The act requires that the warnings include color graphics depicting the negative health consequences of smoking (Public Health Law Center). On August 16, 2011, five tobacco manufacturers filed suit against the Food and Drug Administration, challenging the FDA’s graphic warning rule. The companies argued that the rule violated their First Amendment rights. Then, on February 29, 2012, the district court held that the graphic warning rule violated the tobacco companies’ First Amendment rights. The Food and Drug Administration then appealed this decision to the US Court of Appeals. Later, on August 24, 2012, in a 2-1 ruling, the Court of Appeals agreed with the district court that the requirements violated the tobacco companies’ free speech rights guaranteed by the First Amendment. On October 9, 2012, the Food and Drug Administration filed a petition for a rehearing, which was denied on December 5, 2012 (Public Health Law Center).
The Food and Drug Administration had proposed nine graphic warning labels. They included a photograph of a diseased lung, a picture of a tracheotomy hole in a man’s throat, an illustration of a man with his bare chest surgically stitched up, a damaged heart muscle of smoker and a picture of rotting teeth. The full color illustrations were mandated by the government to cover the entire top half of the front and back of every package of cigarettes. They were intended to be so revolting and so visually inescapable that potential customers would turn away. The five tobacco manufacturers argued that it was a violation under the First Amendment. “For the government to tell private companies what large, ugly, dominant illustrations they must print on their packages is an infringement upon basic principles” (Greene).
US District Court Judge Richard Leon in Washington ruled the requirement that the cigarette makers put the labels on their products would violate the First Amendment by unconstitutionally compelling speech. The judge said that calling the labels “graphic warnings” doesn’t go far enough. He said that they are more about shocking and repelling than warning (Hensley). The government failed to convey any facts supported by the evidence about the actual health consequences of smoking through its use of these graphic images. “The mandate requiring these repellent images and messages to quit smoking poses a constitutional problem. Although an interest in informing or educating the public about the dangers of smoking might be compelling, an interest in simply advocating that the public not purchase a legal product is not” (Hensley). If these labels were implemented, they would have represented the biggest change in cigarette packs in the US in 25 years.
Tobacco companies increasingly rely on their packaging to build brand loyalty and grab consumers. This is one of the few advertising levers left for them after the government curbed their presence in magazines, billboards and information into anti-smoking advocacy (CBS/AP). R.J. Reynolds and Lorillard had sued, saying the warnings would be cost-prohibitive and would dominate and damage the packaging and promotion of their brands. The legal question was whether the new labeling was purely factual and accurate in nature or was designed to discourage use of the products (Mears).
On a basic level, it makes sense that tobacco companies shouldn’t be able to advertise because their product is unhealthy, and it kills people. Plain and simple, it’s bad for you, but you know what else is? Alcohol, soda and fast food. No matter how many of us may dislike what cigarettes have done to the nation’s health, the First Amendment is a compelling one. And believe me, I am not a fan of cigarettes, I have never smoked and can’t stand being around the smell of it, but again telling the manufactures what they must put on the labels is a violation of the First Amendment. “The government risks setting a troubling precedent when, regardless of how laudable the intentions, it tells someone that they must say and show things that aggressively advocate against the person’s or company’s own interests” (Greene). The First Amendment is a basic, but powerful law.
What about text-only warning labels? Text-only warning labels first appeared on cigarette packs in 1965 and were mandated by Congress a year after the US Surgeon General issued the first report documenting the health hazards of smoking. On the cigarette packs, they had small, light lettering, which made them hard to see and easy to avoid. They varied from warning pregnant women that “smoking may result in fetal injury” to “smoking causes lung cancer”, which are all facts (Jim Nowlan). Now, the argument in court is that there is a legal distinction between requiring labels that state facts and requiring illustrations that serve to actively advocate against the purchase of the product. Even though cigarette manufacturers weren’t fans of the text-only warning labels, they would rather have those than pictures on their packs. Not only would it cost more for the images, but it would likely turn away customers from the gruesome pictures. But that’s not even the biggest factor. The biggest factor is that the pictures showed the worst possible cases, were at least the text-only warning labels stated facts for smokers.
Tobacco is a legal product. Everyone over the minimum age of consumption has the choice to smoke or not. It’s not an illegal substance people need to hide and lie about. If someone wants to pay the expensive price of tobacco to slowly kill themselves, then they should have the right to do exactly that. It’s not the governments business what people of the legal age want to put in their bodies (Carlson). The Food and Drug Administration is communicating a message on how people should live their lives. That message is that the risks from smoking outweigh the pleasure that smokers derive from it. It also has a message that smokers make bad personal decisions and should stop smoking because it’s not good for them. The government should let people make their own decisions, instead of trying to put images on cigarette packages to try and convince people not to smoke.
There are many reasons why people shouldn’t smoke, but still do. Some people like to smoke because it makes them feel better, were other people would like to quit, but are addicted to them. Either way, smoking is legal, so we can’t stop people from smoking or doing what they want with their bodies. We can’t stop people from eating fast food, so why would we be able to stop people from smoking? Both are bad for us and everyone knows that, but no matter what, some people are going to continue to do it.
By the Food and Drug Administration trying to control what goes on cigarette packs, they are taking away that manufacturers free speech. Yes, I understand that the government is trying to do this to make our country healthier, and reduce death caused by smoking but trying to put one of the nine images on every pack of cigarettes is not the way to do it. Doing this would cost the cigarette manufacturers more money for the colorful mandatory images. Everyone knows that smoking is bad, so these images most likely won’t even affect the current smokers, it could possibly only reduce the risk of future smokers, but we don’t know for sure. If the images weren’t so gruesome, it wouldn’t be so bad. But the Food and Drug Administration is just trying to scare off buyers. If the images were based on facts, it might be different, but the images show the worst things that can happen to smokers. So, since the images failed to have any facts supported by evidence about the actual health consequences of smoking, they are taking the companies First Amendment away by telling them what they can and can’t do, when they don’t agree with it at all. The First Amendment is very powerful. And the cigarette manufacturers used that law to the fullest. That was their main reason to why the Food and Drug Administration shouldn’t be allowed to use the images. And so far, the First Amendment is stopping that from happening, and will most likely continue to do that until they come up with something else.
