The adult percentage of smokers has disappointingly remained about 20% over the last five years. In response, the FDA released its newest warning labels for cigarette packages. According to the new regulations, at least half of the package must be covered by the warning. Perhaps most striking are the depictions you see below of what prolonged cigarette smoking can bring about. As important as I think it is for consumers to have the most candid information possible about tobacco use, I’m impressed at how graphic they are.
However, R.J. Reynolds and Philip Morris, the nation’s largest cigarette manufactures, have responded with letters to the FDA alleging that the new regulations violate their first amendment rights. The gist of their argument is that, by forcing them to portray these large, graphic depictions, the government is, in essence, forcing them to speak.
Of course, like many constitutional issues, your opinion will largely depend on how you frame the issue. If you frame it as being whether the government can force a private company to display its message on the company’s products, that’s a no-brainer no. If you frame it as being whether the government can require warning labels on a company’s products, well that’s a no-brainer yes. So how do we classify this? Is there a constitutionally meaningful difference between a warning label with no pictures and a warning label with pictures? Is there a constitutionally meaningful difference between a warning label that takes up 10% of a package and one that takes up 50%? Are we going to say that a warning label is constitutional as long as there are no pictures? That seems a bit arbitrary. Are we going to say that a warning label with pictures is constitutional as long as they are not graphic? My reaction to that is that these pictures are doing exactly what the words were intended to do: warn consumers about the dangers of tobacco use. The only difference is these do it much better.
Therefore, I’m inclined then to accept the FDA’s new regulations as well within the commerce clause. This one will be interesting to follow as I suspect a lawsuit may be following.