A divided D.C. Circuit Court of Appeals has determined that the graphic antismoking images which the Food and Drug Administration (FDA) selected for placement on cigarette packages for the purpose of reducing smoking rates in the United States fail the intermediate scrutiny standard for compelled commercial speech. R.J. Reynolds Tobacco Co. v. FDA, No. 11-5332 (D.C. Cir., decided August 24, 2012). According to the court, which vacated the graphic warning requirements and remanded to the agency, “FDA failed to present any data much less substantial evidence required under the [Administrative Procedure Act]—showing that enacting their proposed graphic warnings will accomplish the agency’s stated objective of reducing smoking rates.”

The court discusses the different standards applied when deciding whether government efforts to regulate speech are permissible under the First Amendment. A strict scrutiny standard, for example, gives government little leeway to compel or proscribe speech and imposes a heavy burden on government to demonstrate that the particular rule is narrowly tailored to achieve a compelling government interest. The district court applied a strict scrutiny standard when striking down the graphic warnings, concluding that a less stringent standard, a rational-basis review, was inapplicable because the warnings were not purely factual and uncontroversial disclosures. FDA argued that the latter more “lenient standard of scrutiny” should be applied to regulations serving a governmental interest: “disclosure of the health and safety risks associated with commercial products.”

The court rejected the lenient approach, observing that “a disclosure requirement is only appropriate if the government shows that, absent a warning, there is a self-evident—or at least ‘potentially real’—danger that an advertisement will mislead consumers.” Because the law already bans any advertising representing cigarette products as light, mild, less harmful, or lower risk and because FDA did not “show that absent disclosure, consumers would likely be deceived by the Companies’ packaging in the future,” the court found the lenient standard inapplicable. Applying the intermediate level of review that generally applies to commercial speech, the court still found that FDA’s evidentiary support was lacking, because its consumer-perception research and studies of graphic warnings in other countries did not demonstrate that such warnings actually reduce smoking rates.

The court also found that the “inflammatory images and the provocatively
named hotline [1-800-QUIT-NOW] cannot rationally be viewed as pure
attempts to convey information to consumers. They are unabashed attempts
to evoke emotion (and perhaps embarrassment) and browbeat consumers
into quitting.”

The majority and dissenting judges differed over the appropriate standard
to apply as well as over FDA’s asserted interests. The majority determined
that FDA’s “only explicitly asserted interest in either the Proposed or Final
Rule is an interest in reducing smoking rates.” The dissenter contended that
FDA’s interest was “to effectively convey the negative health consequences of
smoking on cigarette packages and in advertisements.” Applying the lenient
standard of scrutiny, the dissenter would have found that the graphic warning
label requirements were “reasonably related to” that interest and thus that the
regulation was valid.

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For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.