The FDA’s Graphic Tobacco Warnings and the First Amendment

Abstract

In the past, the government enjoyed broad authority to regulate tobacco or pharmaceutical advertising. Protection for commercial speech was weak, and state power to protect the public health was strong.

But the U.S. Supreme Court has changed course. Corporate speech rights have become robust, and the justices exhibit less deference when the state exercises its public health authority. As a result, government is much more susceptible to challenge when it tries to regulate the promotional activities of cigarette manufacturers or pharmaceutical companies.

This "Perspective" piece illustrates the evolution of First Amendment doctrine for public health regulations with a discussion of the Food and Drug Administration's graphic warnings for cigarette packages. Even though textual warnings for cigarettes have been upheld, and even though the U.S. Court of Appeals for the Sixth Circuit recognized a role for some color image warnings, the U.S. Court of Appeals for the D.C. Circuit rejected the FDA's actual graphic warnings (which were developed pursuant to a graphic warnings mandate from Congress).

Rather than seek Supreme Court review, the FDA decided to revise its graphic warnings. In the meantime, we are left with some important questions about the factors that distinguish between permissible and impermissible graphic warnings.