1. Commercial speech is generally analyzed under intermediate-level scrutiny rather than under strict scrutiny. Do you think it is appropriate to treat commercial advertising differently than other forms of speech? Why or why not
2. What did the FDA need to prove in order to prevail in this case?
3. Should compelled speech be analyzed or treated differently than prohibited speech? Why or why not?
The Family Smoking Prevention and Tobacco Control Act, passed in 2009, directed the secretary of the U.S. Department of Health and Human Services to issue regulations requiring that all cigarette packages manufactured or sold in the United States bear one of nine new textual warnings, as well as “color graphics depicting the negative health con-sequences of smoking.” The Food and Drug Administration (FDA) initiated a rule making proceeding through which it selected the nine images that would accompany the statutorily prescribed warnings. Among those proposed by the FDA were images of a man exhaling cigarette smoke through a tracheotomy hole in his throat and a pair of diseased lungs next to a pair of healthy lungs. R.J. Reynolds and four other tobacco companies (RJR) challenged the rule, arguing that it would infringe on their commercial speech rights under the First Amendment. The trial court ruled in favor of RJR and the FDA appealed.
The U.S. Court of Appeals for the District of Columbia upheld the trial court’s decision in favor of RJR. The court applied the Central Hudsontest and ruled that the FDA had failed to supply any evidence that the rule, which restricted commercial speech, directly advanced a substantial government interest. The court ruled that the labels were not purely factual because they did not convey any warning information or offer any information about the impact of smoking. Rather, the images were intended to generate emotional responses. There-fore, the FDA could not meet its burden under the Central Hudsontest with respect to how the graphic warnings directly advanced the government’s interest.
Applying the Central HudsonTest “Under Central Hudson,the government must first show that its asserted interest is ‘substantial.’ If so, the Court must determine ‘whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.’ . . . FDA has not provided a shred of evidence—much less the ‘substantial evidence’ required . . . showing that the graphic warnings will ‘directly advance’ its interest in reducing the number of Americans who smoke. FDA makes much of the ‘international consensus’ surrounding the effectiveness of large graphic warnings, but offers no evidence showing that such warnings have directly caused a material decrease in smoking rates in any of the countries that now require them.”
