First Amendment win: Court strikes down graphic images on cig labels

posted at 6:18 pm on August 27, 2012 by Erika Johnsen

For a couple of years now, the FDA has been moving forward with new regulations that would have coerced tobacco companies into splashing some rather graphic images (you know, just some corpses and rotting teeth and whatever) on packages of cigarettes. The ostensible idea is to jar smokers into action and motivate them into quitting smoking, I suppose, but why the federal government needs to be in the business of motivating people to quit smoking — when smokers are pretty well aware of the risk and are making a personal decision about how they want to conduct their lives — I’m sure I don’t know. (Ohhhh, that’s right — universal health care. Yay.) Health advocacy groups applauded the regulations, of course, as within the interest of the general welfare, while tobacco companies and proponents of personal choice claimed the whole thing was a pretty gross assault against First-Amendment rights.

The regulations were scheduled for implementation starting in September, but for now at least, looks like the FDA’s hardcore illustrated warning labels just weren’t meant to be. The WSJ reports:

The U.S. Court of Appeals for the District of Columbia Circuit, in a 2-1 decision, said federal regulators fell short of meeting constitutional requirements for justifying the labeling rules. “The First Amendment requires the government not only to state a substantial interest justifying a regulation on commercial speech, but also to show that its regulation directly advances that goal,” Judge Janice Rogers Brown wrote in the majority opinion.

The Food and Drug Administration “failed to present any data—much less the substantial evidence…showing that enacting their proposed graphic warnings will accomplish the agency’s stated objective of reducing smoking rates,” she added. …

Some legal observers said they expect the matter eventually to be decided by the U.S. Supreme Court. In March, a different federal appeals court largely upheld the government’s authority to regulate tobacco products, including the requirements for graphic labels, creating the type of legal conflict in the federal court system that can lead to high court review. …

This doesn’t mean the law is dead yet, but the court has put another kink in the federal government’s master plans — they’re going to have to keep fighting this thing, maybe even all the way to SCOTUS (and always remember this about the federal government’s doings: it’s all your money!). Way back when, Allahpundit wondered how much the First-Amendment argument would give the tobacco companies a leg to stand on, and it looks like it is: Regulating commercial speech is a slippery slope, made even more apparent lately by the creepin’ nanny state. Just because your heart might be in the right place, doesn’t mean you’re right.


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Lets trade Janice Rodgers Brown for John Roberts.

joepub on August 27, 2012 at 6:20 PM

Just because your heart might be in the right place, doesn’t mean you’re right.

Agitation propaganda is probably evidence that your heart is not in the right place.

Axe on August 27, 2012 at 6:22 PM

*Promoting

Axe on August 27, 2012 at 6:22 PM

Can you imagine the graphic ads on abortifacients?

de rigueur on August 27, 2012 at 6:26 PM

Why does the government care? Obamacare?!?

It’s just another source of revenue. So with gasoline tax revenue in decline, ciggie tax revenue in decline, all the big government statists must be thinking UH OH.

How are we going to get around this?

I know. Let’s have a CARBON TAX and a VAT!

Wow, I sound like a Democrat. For my next trick I”ll poop on a cop car.

CorporatePiggy on August 27, 2012 at 6:26 PM

Can you imagine the graphic ads on abortifacients?

de rigueur on August 27, 2012 at 6:26 PM

That was NEVER on the cards.

CorporatePiggy on August 27, 2012 at 6:27 PM

The FDA should have graphic images of aborting live babies on Obama ads.

faraway on August 27, 2012 at 6:27 PM

i wouldn’t have minded if these graphic regulations would have passed. either they would do nothing at all or they would have discouraged people from smoking… which I think is a good thing but if you all think that fewer people slowly destroying their lungs (and other parts of their bodies, NOT just lungs) is not a good thing then that’s your opinion… lol

but why the federal government needs to be in the business of motivating people to quit smoking — when smokers are pretty well aware of the risk and are making a personal decision about how they want to conduct their lives — I’m sure I don’t know.

i don’t know why you assume that smokers are “well aware of the risks.” if they’re so incredibly well aware and informed of all the risks of smoking then why would they do it? i think most smokers have an “it won’t happen to me” mentality and they believe they somehow have a magical immunity to any health problems caused by smoking. but that doesn’t sound very “well aware” to me.
hmm, if only there were more ways to make them more aware of the many health risks of smoking… oh wait, the court just struck down one way that would have helped.

the graphic images wouldn’t have forced anyone to buy or not buy cigarettes, people would still have that choice. (and besides, government already requires food, cigarette, and medicine companies to have certain warnings/info on their products anyway. nothing unconstitutional about that.) so i don’t get why people are so opposed to this, when it would have actually had a positive effect… sigh

Sachiko on August 27, 2012 at 6:32 PM

What will all of these Goo-Goo types due for government revenue if they were to be so lucky as to accomplish a ban of all tobacco?
Well, there’s always the Income Tax, which was the fallback for when alcohol was banned, and the government took a tremendous revenue hit.
I suppose that what the Goo-Goo’s would like to do is to put us all on an allowance (a very small one), and everything else goes to them (government).

Another Drew on August 27, 2012 at 6:33 PM

First Amendment win: Court strikes down graphic images on cig labels
====================================================================

Good!

canopfor on August 27, 2012 at 6:35 PM

so i don’t get why people are so opposed to this, when it would have actually had a positive effect… sigh

Sachiko on August 27, 2012 at 6:32 PM

Behavior modification is an addictive drug itself for those in power. Examples: Nanny Bloomberg and Michelle Obama.

a capella on August 27, 2012 at 6:39 PM

whew. those pictures use to make me inhale that much deeper. now i can smoke less and enjoy it more.

for now. till cancer strikes. then it’ll be a total bummer.

renalin on August 27, 2012 at 6:42 PM

There is a segment in our society that would start smoking just to purchase the packages with the graphic images. I think a lot of them already smoke anyway.

PrettyD_Vicious on August 27, 2012 at 6:43 PM

jar smokers into action and motivate them into quitting smoking,

As a smoker..worst addiction imaginable..Cancer scares me to death and other consequences… more then their little pictures. ^5. I help support Fl medicaid and on and on..they love them some “sin” taxes.

Sachiko on August 27, 2012 at 6:32 PM

Really..It seems you never had an addiction. It is easy to judge something without knowledge.

bazil9 on August 27, 2012 at 6:43 PM

Yuck. Now can we change the picture on the front page? I keep seeing those teeth and ewwe.

magicbeans on August 27, 2012 at 6:44 PM

so i don’t get why people are so opposed to this, when it would have actually had a positive effect… sigh

Sachiko on August 27, 2012 at 6:32 PM

How do graphic pictures keep someone from thinking “it won’t happen to me”?

Bobbertsan on August 27, 2012 at 6:44 PM

In Europe they do have large sections of the box of ciggie that say subtle things like:

“SMOKERS DIE HORRIBLE DEATHS”
“SMOKING CAUSES SEVERE DAMAGE TO CHILDREN IN THE WOMB”
*PASSIVE SMOKING KILLED MOHAMMED”
etc.

There’s zero evidence these helpful notes have any impact but they are a nice reminder that Nanny is watching.

CorporatePiggy on August 27, 2012 at 6:47 PM

If the FDA can pull other unsafe drugs off the market like phen-phen and avandia, why cant they just pull nicotine off the market as well?

paulsur on August 27, 2012 at 6:49 PM

The government has no business actively sabotaging any legal business in such a way. In any way. This was beyond absurd. Honestly, it’s something out of a comedy sketch.

Dongemaharu on August 27, 2012 at 6:50 PM

I’m trying to quit, but doubt this would help.

Ugly on August 27, 2012 at 6:50 PM

If the FDA can pull other unsafe drugs off the market like phen-phen and avandia, why cant they just pull nicotine off the market as well?

paulsur on August 27, 2012 at 6:49 PM

Hell, they can’t control truckloads of illegal dope rolling over the border. What makes you think they’ll give up the tax money to ensure a black market? This is all kabuki.

a capella on August 27, 2012 at 6:53 PM

Next-your can of Bud Light will have pics of the cirrhosis liver and a baby born with alcohol fetal syndrome- That will kill your romantic date with a nice bottle of fine wine…LOL.

bazil9 on August 27, 2012 at 6:56 PM

…good!…just good!

KOOLAID2 on August 27, 2012 at 6:58 PM

Can you imagine the graphic ads on abortifacients?

de rigueur on August 27, 2012 at 6:26 PM

wait for iiiiiiiiiiiiiiiiiit…………………..

That’s RACIST!!!!!!!!!! or something…..

Just because your heart might be in the right place, doesn’t mean you’re right.

indeed…………

RealMc on August 27, 2012 at 6:58 PM

Gee, did AIDS stop people from wearing a love glove? Apparently not..pics of dying aids patients, herpes and gono should be on that pack of condoms I say.

bazil9 on August 27, 2012 at 7:01 PM

Doesn’t all food cause you to poop?

This will be the FDA’s next public education crusade. And they’ll require special pictures on anything containing corn.

logis on August 27, 2012 at 7:01 PM

Somewhere, Nick Naylor is smiling . . .

BGordon on August 27, 2012 at 7:02 PM

Well, thanks to the Roberts Doctrine (TM), Congress can just pass a huge penalTax on all the companies that DON’T use the graphic labels…

DavidW on August 27, 2012 at 7:02 PM

why the federal government needs to be in the business of motivating people to quit smoking [...] I’m sure I don’t know. (Ohhhh, that’s right — universal health care. Yay.)

Of course. Once they’re paying for your health and wellness they can claim a “right” to regulate your every action, since virtually anything you do, eat, drink can influence your health. No red meat or soda’s – bad for you. Ditto salt. No skateboards – dangerous, and so is football, so that’s gone too. Keep the cars below 55, well, actually, cars are dangerous, so we’ll put you all in mass transit. Stress is bad for you too, so all that worrying about politics and elections and stuff has got to go as well.

The ultimate nanny wet dream.

bofh on August 27, 2012 at 7:07 PM

There is a segment in our society that would start smoking just to purchase the packages with the graphic images. I think a lot of them already smoke anyway.

PrettyDumb&_Vicious on August 27, 2012 at 6:43 PM

Yeah that’s it.

bazil9 on August 27, 2012 at 7:08 PM

Well, thanks to the Roberts Doctrine (TM), Congress can just pass a huge penalTax on all the companies that DON’T use the graphic labels…

DavidW on August 27, 2012 at 7:02 PM

Heh. Why not?

He phucked up big time.

CW on August 27, 2012 at 7:08 PM

The ultimate nanny wet dream.

bofh on August 27, 2012 at 7:07 PM

Yes er E Bof. Common sense goes a long way..wish it would come back in fashion.

bazil9 on August 27, 2012 at 7:15 PM

Sachiko on August 27, 2012 at 6:32 PM

The Mister is a fat, pack-a-day smoker. He knows the risks…and they don’t deter him. *I’m hoping that my pleading because widowhood doesn’t appeal to me does.*
Say no to Nannystaters!

annoyinglittletwerp on August 27, 2012 at 7:21 PM

I think this is a good thing. If smokers have an ‘it won’t happen to me’ attitude, then graphic images on a label aren’t going to change that. They will still think it happens to other people. Rather like graphic videos of car accidents and boozing teens doesn’t have any effect on stopping teen drivers from being stupid on the road.

What these PSA’s and other ‘educational’ media do do, though, is drag the families and friends of those who have lost their lives to cigarettes through lung cancer or through road accidents, through living the whole horror and grief again of losing a loved one. This is a cost that is NEVER counted. I know my sister still weeps when she sees a graphic lung cancer ad on tv as she lost her husband to it. The ads didn’t stop him from smoking, but it continues the pain for her. She is a non smoker.

Ozwitch on August 27, 2012 at 7:29 PM

so i don’t get why people are so opposed to this, when it would have actually had a positive effect… sigh

Sachiko on August 27, 2012 at 6:32 PM

What say we put some pictures of mutilated third trimester babies on big posters on the front on all abortion clinics? Like big recruiting posters. Do you think that would have a positive effect?

hawkdriver on August 27, 2012 at 7:31 PM

so i don’t get why people are so opposed to this, when it would have actually had a positive effect… sigh

Sachiko on August 27, 2012 at 6:32 PM

Or, or how about a picture of a gigantic ass in a thong on the wrapper of every franchise hamburger you eat. And to give audio to the effect, we’ll have a greeting card music device that play “Baby Got Back” when you open the sandwich to see if they held the pickles.

hawkdriver on August 27, 2012 at 7:35 PM

Or, or how about a picture of a gigantic ass in a thong on the wrapper of every franchise hamburger you eat. And to give audio to the effect, we’ll have a greeting card music device that play “Baby Got Back” when you open the sandwich to see if they held the pickles.

hawkdriver on August 27, 2012 at 7:35 PM

hawkdriver:Me thinks,it might need (more) Cowbell,ahem,(sarc):)

canopfor on August 27, 2012 at 7:39 PM

I’m sure I don’t know. (Ohhhh, that’s right — universal health care. Yay.)

Isn’t it in the interest of universal health care that people doe younger?

Just sayin’

mankai on August 27, 2012 at 7:40 PM

I want to see graphic image warnings on new laws. With every new law we need to see graphic images of death camps, people being taken out of their homes in the middle of the night, families starving, firing squads, armored cars and tanks rumbling through neighborhoods. Why not? The libs are always saying they do this crap for the children and to save lives. Well, big abusive governments have killed far more of their own people than cigarette and obesity ever did.

JellyToast on August 27, 2012 at 7:41 PM

How about a picture on all cellphones that shows the guy who had his head and spine removed from his body when he ran his sports car under a semi texting. That would have an effect.

hawkdriver on August 27, 2012 at 7:46 PM

What with all the injuries and deaths caused by bathtub slips and falls, I propose murals of broken bodies be required on the side of every bathtub.

whatcat on August 27, 2012 at 7:54 PM

Lets trade Janice Rodgers Brown for John Roberts.

joepub on August 27, 2012 at 6:20 PM

I second the motion.

Funny thing, a year ago I would have told you that John Roberts was the greatest thing since sliced bread. But every since he sold the nation out to socialism, I have no use for him.

Axion on August 27, 2012 at 8:01 PM

The Australian experience suggests the followed is the path it will go down (these are all things that have happened in Australia in the past 10 to 15 years):

1. Messages on packs (‘Smoking causes lung cancer’, etc)
2. Graphic photos on packs with regulations defining how much of the pack must be devoted to the photos.
3. Displays of cigarettes in shops, etc must be covered so as to be out of sight at all times. The lids must only be opened to retrieve ‘smoking products’ for customers then closed again immediately or the shop will be liable to a fine and legal action.
4 Pack regulations extended to reduce size of branding on packs and increase photos and anti-smoking messages.
5 No smoking allowed inside any public building or premises to which the public has access or areas which are controlled in any way by government including sports arenas, motor racing precincts, lifeguard patrolled areas of beaches, shopping malls, workplaces of any kind including trucks, taxis, etc, pubs, bars, casinos (except some casino ‘high roller’ rooms), etc.
6. No smoking within four metres of the entrance to any premises per above. (This means a smoker is technically in breach of the law walking down the average shopping street unless the sidewalk is wider than four metres (rare) or he/she walks in the gutter).
7. Retailers and shop assistants banned from providing customers with any information about ‘smoking products’. Thus it is illegal to answer questions such as ‘how much is a pack of Marlboro Lights?’ Retailers and shop assistants also obliged under law to serve only customers who ask for ‘smoking products’ by name, thus ‘I’d like a pack of Benson and Hedges Extra Milds’, and must refuse requests that do not ask specifically for the brand, such as ‘I’d like a pack of rolling tobacco’ or ‘a pack of 20 cigarettes, please’, and must not allow customers to view the stock to obtain any visual assistance.
8. All pack designs banned; packs to be plain brown with brands/logos removed and brand name and product type printed in plain generic font and size as defined by law.
9. (Coming to one Australian State (Tasmania) soon) Sales of ‘smoking products’ not permitted to persons who were under 18 years of age at a date to be set in 2016, thus phasing out the legality of tobacco sales.

The Thin Man Returns on August 27, 2012 at 8:01 PM

I’m happy common sense won the day but it just shows what a mess this country is in to think any government agency ever thought they had to authority to make such a ridiculous requirement in the first place.

The government was set up by the people to serve the people. Now we are all government slaves.

Axion on August 27, 2012 at 8:06 PM

If this was the worst thing the government was attempting to do it would be great. Since we all pick up the cost of smokers – as well as those of all other bad health habits — through our corporately provided health plans –perhaps this isn’t as bad as it might seem. Big Tobacco figured out a long time ago that the best way to mitigate the cancer lawsuit risk was to diversify into the rest of our food chain i.e. RJ Reynolds-Nabisco etc. That way we all pay the lawsuit “tax”. On the other hand you are going to die of something so maybe better in your 60′s of lung cancer than in your 80′s after having spent your 70′s in the nursing home being shoveled keep-alive meds only to have some bureaucrat from DC decide to pull the plug on you because they need the bedspace for Harry Reid’s illegitimate love child.

nokarmahere on August 27, 2012 at 8:14 PM

Quit smoking! But, but, but, what about the children. People who don’t smoke hate sick children.

kringeesmom on August 27, 2012 at 8:17 PM

i don’t know why you assume that smokers are “well aware of the risks.” … i think most smokers have an “it won’t happen to me” mentality and they believe they somehow have a magical immunity to any health problems caused by smoking.

Sachiko on August 27, 2012 at 6:32 PM

No, every smoker I know at some point wants to quit. I was a smoker for 35 years, and knew a lot of other smokers. Without exception, every one of them wanted to quit. Not one of us thought “it couldn’t happen to me”; not one of us thought that inhaling smoke and particulate matter regularly was a good thing; not one of us thought we were exempt from eventual malady. We were addicted, and we new it. Many of those folks still are.

This is where the anti-smoking gang gets it so wrong. I suspect most of them have never dealt with an addiction. Go ahead – pick something you like a lot and give it up – forever. Just because.

ss396 on August 27, 2012 at 8:18 PM

If you collect all 10 do you get a free pack of cigarettes?

ss396 on August 27, 2012 at 8:19 PM

I imagine John Roberts will decide that these labels are a tax and uphold them.

Bitter Clinger on August 27, 2012 at 8:49 PM

Tobacco use is a gamble.

About 20-30%, over a lifetime, lose that bet.

But 70-80% win.

Do they mention that in the warnings?

(Never smoked, because I used my spare cash for guitar strings, flange pedals, etc. instead, so I’m a disinterested observer.)

profitsbeard on August 27, 2012 at 8:50 PM

If the law would have been held, it would have been nice to use the precedent to put warning labels with pictures on voting ballots.

WARNING: Socialism has been known to lead to mass killings, famine, and general loss of liberty.

Glenn Jericho on August 27, 2012 at 9:07 PM

What with all the injuries and deaths caused by bathtub slips and falls, I propose murals of broken bodies be required on the side of every bathtub.

whatcat on August 27, 2012 at 7:54 PM

And banana peels!

profitsbeard on August 27, 2012 at 9:26 PM

If the FDA can pull other unsafe drugs off the market like phen-phen and avandia, why cant they just pull nicotine off the market as well?

paulsur on August 27, 2012 at 6:49 PM

Because the various taxes on tobacco products provide major funding for programs which are “for the children“!!!

If government gets rid of tobacco, their gravy train for thousands of dubious (but OK-sounding) programs disappears. And the only way to continue the dubious programs is to tax the h$ll out of non-smokers.

landlines on August 27, 2012 at 9:26 PM

Sachiko on August 27, 2012 at 6:32 PM

The Mister is a fat, pack-a-day smoker. He knows the risks…and they don’t deter him. *I’m hoping that my pleading because widowhood doesn’t appeal to me does.*
Say no to Nannystaters!

annoyinglittletwerp on August 27, 2012 at 7:21 PM

Same with the grandmother. We tried everything – whining, complaining, guilt, etc, etc. She continued to smoke, was well aware and *did not care*.

Yes, it killed her. But it was her choice and one we had to accept when she died.

We all choose the methods of our destruction. Otherwise, we’d be eating granola, driving 20 mph and living the “clean life”.

I hope you have better luck with your husband than we did with granny.

kim roy on August 27, 2012 at 9:48 PM

Lets trade Janice Rodgers Brown for John Roberts.

joepub on August 27, 2012 at 6:20 PM

I’d rather trade JRB for Ginsburg and Kozinski for Breyer (assuming we couldn’t be lucky enough to bump Kagan or Sotomayor).

cthulhu on August 27, 2012 at 10:30 PM

so i don’t get why people are so opposed to this, when it would have actually had a positive effect… sigh

Sachiko

Of course you don’t. That pretty much says it all.

xblade on August 28, 2012 at 12:05 AM

For those that say that smokers are unaware of the risks they face, I call BS. We hear it from friends, family, the news, doctors, and even strangers in public. We know that they are bad for us. We know that if we choose to not stop that they can shorten our life.

The first thing I thought of with the pictures on the cigarette pack was that the government had found a way to make them collectors items. Who wouldn’t want the first run of pictures when they first came out? After all an unopened pack with intact tax stamp and picture could be worth a bit of money once all smokers stopped smoking. Right? They will be changing the pictures from time to time, so what are the chances that they will reuse any one picture again after sensitizing us to them and having to get more graphic over time? I am thinking collector status so that when they ARE outlawed, I will be able to charge as much as I want to those that really need a nicotine fix. Free market economy. I love it!

Freed0m28 on August 28, 2012 at 9:47 AM