“Speech regulation should be a last resort and shouldn’t force businesses to parrot the government’s message. FDA’s proposed rule oversteps these bounds and violates the First Amendment.”
—Marc B. Robertson, WLF Staff Attorney

Click here for WLF’s comment.

WASHINGTON, DC— Washington Legal Foundation (WLF) today filed formal comments with the Food and Drug Administration (FDA) in response to a request for input on new proposed warnings for cigarette packages and advertisements. WLF’s comments argue that the proposed warnings run afoul of the First Amendment.

For years, FDA has required cigarette packages and advertisements to display warnings (such as the Surgeon General’s Warning) highlighting the potential dangers of cigarette smoking. In 2012, the U.S. Court of Appeals for the D.C. Circuit struck down an FDA regulation that imposed similar graphic warnings on tobacco products. The August 16 proposal takes largely the same approach as the invalidated rule, mandating that cigarette packages and advertisements include graphic, photorealistic images in addition to new textual warnings.

WLF’s comments argue that FDA’s second attempt suffers from the same constitutional infirmities as its earlier warning requirement. FDA asserts that its latest proposal advances a substantial government interest and does not unduly burden protected speech. But such an interpretation of commercial-speech rights flouts Supreme Court jurisprudence.

Under those precedents, WLF argues, the government may only compel speech if the required disclosure involves “purely factual and uncontroversial” information and is aimed at the preventing consumer deception. The FDA’s perceived “significant gaps in public understanding about the negative health consequences of cigarette smoking” do not amount to consumer deception by the cigarette companies. Further, the graphic images serve little purpose beyond shocking and inflaming consumers, and are therefore controversial.

The compelled disclosures are also far more extensive than necessary and impose an undue burden on the industry. Speech regulations should be a last resort, but FDA fails to provide evidence that it considered any alternative beyond requiring the tobacco industry to serve as a billboard for FDA’s ideological views.

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