Forcing cigarette companies to put graphic warning labels, including health warnings, pictures of diseased organs, and the 1-800-QUIT-NOW number, on cigarette packages, is a violation of the First Amendment, according to a recent and totally correct ruling by the
DC Circuit (pdf).
You might wonder why this is so, since cigarette companies are already required to put warning labels on packs, while alcohol manufacturers have other warning labels, and all makers of packaged food are required to list ingredients, calories and so forth. The legal reasoning behind this regulation is that the government had a legitimate interest in making sure that consumers are accurately informed about the contents and risks of the food, beverages and cigarettes they consume.
Now, there is nothing in the Constitution restricting the ability of
government agencies to campaign against smoking, taking the public stand
that the risks of smoking outweigh its benefits. The libertarians among
us might think that this is not a proper use of the power and
money of the state, but the libertarians among us are often
disappointed. However, the state still does not have the right to force any individual or company to express a certain opinion. The federal district court and DC Circuit agree that graphic labels and the QUIT NOW message go beyond informing consumers about health risks and amount to discouraging smoking. (In fact, the FDA made no secret of the fact that it hoped the labels would nudge people to quit.) This "ideological" message is one the government cannot force a company to send.
The
Companies contend that, to the extent the graphic
warnings go beyond the textual warnings to shame and
repulse smokers and denigrate smoking as an antisocial act, the message is ideological and not informational. “[B]y effectively
shouting well-understood information to consumers,”
they explain, “FDA is communicating an ideological
message, a point of view on how people should live
their lives: that the risks from smoking outweigh the pleasure
that smokers derive from it, and that smokers make bad personal decisions, and should stop smoking.”
No
one doubts the government can promote smoking cessation programs; can use
shock, shame, and moral opprobrium to discourage people from
becoming smokers; and can use its taxing and regulatory authority
to make smoking economically prohibitive and socially
onerous. And the government can certainly require that
consumers be fully informed about the dangers of hazardous
products. But this case raises novel questions about
the scope of the government’s authority to force the manufacturer
of a product to go beyond making purely factual and
accurate commercial disclosures and undermine its own economic
interest—in this case, by making “every single pack of
cigarettes in the country [a] mini billboard” for the government’s
anti-smoking message.
The so-called "warning labels" are not really warning at all, the Court held, but
propaganda. Some convey no relevant facts, and others might be deceptive: an image of someone smoking through a tracheotomy hole might give the inaccurate impression that a tracheotomy is a common result of smoking.
Many of the images do not convey any warning information at all, much less make an “accurate statement” about cigarettes. For example, the images of a woman crying, a small child, and the man wearing a T-shirt emblazoned with the words “I QUIT” do not offer any information about the health effects of smoking. And the “1-800-QUIT-NOW” number, when presented without any explanation about the services provided on the hotline, hardly sounds like an unbiased source of information. These inflammatory images and the provocatively-named hotline 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.
I find myself saying, as often before, thank God for the First Amendment. Cigarette companies in other countries are already forced to use graphic "warning" labels. Now, if only we still had the Fourth, Fifth and Sixth Amendments...