Digest #31: This Week in Smoke-free News

By far the biggest news in tobacco control this week was the US Court of Appeals decision against the proposed FDA graphic warning labels that were originally set to debut on all cigarette packages in September. Again, RJ Reynolds and other tobacco companies won on First Amendment grounds, in that the government's attempt to force tobacco companies to include the warning labels surpasses the limits of commercial speech regulation.

This is such a tough issue for me because, on the one hand, I do believe that the government has a substantial interest--backed by more than a "shred of evidence"--in discouraging the purchase of cigarettes, but on the other hand, I have the utmost respect for the First Amendment and freedom of speech. I've joked about how we somehow need to amend the First Amendment so that regulations such as this one can pass legal scrutiny, but the problem isn't with the way that the First Amendment is worded (i.e., "Congress shall make no law...abridging the freedom of speech, or of the press..."), but rather the precedent for regulating commercial speech that has been developed over the last century or so. Since Central Hudson Gas & Electric Corp. v. Public Service Commission was decided in 1980, the following four questions have generally been asked of cases involving regulation of commercial speech, so I'll attempt to answer them:

1. Is the expression protected by the First Amendment? Lawful? Misleading? Fraud? The expression is lawful and not misleading. Statements like "Smoking can kill you" are scientifically verifiable.
2. Is the asserted government interest substantial? You bet it is. Healthcare costs alone make smoking prevention a substantial interest of government.
3. Does the regulation directly advance the governmental interest asserted? I sure think so. By placing graphic warning labels on the cigarette packages, the FDA is attempting to intercept smokers before they pull out a cigarette.
4. Is the regulation more extensive than is necessary to serve that interest?  This is where I think the issue lies and the FDA may have gotten ahead of itself. Some of the proposed images depict worst-case scenarios: a man exhaling smoke with a hole in his throat, a pair of the ugliest lungs possible, and a corpse. However, some images, like the child being exposed to secondhand smoke, aren't unreasonable--they merely elicit strong emotion. Perhaps if all of the imagery were illustrated similarly to the one pictured above, the Court would have ruled differently.

For the sake of public health, I hope that the Supreme Court has a different opinion.