Paternalistic Manipulation through Pictorial Warnings: The First Amendment, Commercial Speech, and the Family Smoking Prevention and Tobacco Control Act

32 Pages Posted: 12 Sep 2012  

Stephanie Bennett

affiliation not provided to SSRN

Date Written: April 15, 2012

Abstract

Beginning in 2012, the Family Smoking Prevention and Tobacco Control Act will require pictorial warning labels on both regular and smokeless tobacco products. The warnings contain textual statements encouraging smoking cessation as well as graphic images depicting cadavers, crying children, and cancerous lesions. As presently required by the U.S. Food and Drug Administration, the warnings both unconstitutionally compel and suppress commercial speech. The warnings violate the First Amendment under every existing Supreme Court standard for evaluating commercial speech regulations: the “reasonable relation” standard of Zauderer v. Office of Disciplinary Counsel; the strict scrutiny standard of Wooley v. Maynard; and the intermediate scrutiny standard for commercial speech disclosure and suppression expressed in Central Hudson Gas & Electric Corporation v. Public Service Commission. Rather than tax tobacco products, ban tobacco products, use removable warnings already adopted by many countries including Canada, or implement educational programs to inform consumers about the dangers of using tobacco products, the FDA has instead resorted to paternalistic manipulation of consumers and infringement upon the First Amendment rights of tobacco manufacturers.

Keywords: tobacco, control, family smoking prevention and tobacco control act, constitutional, first amendment, smoking, Central Hudson, Zauderer, Wooley

Suggested Citation

Bennett, Stephanie, Paternalistic Manipulation through Pictorial Warnings: The First Amendment, Commercial Speech, and the Family Smoking Prevention and Tobacco Control Act (April 15, 2012). Mississippi Law Journal, Vol. 81, No. 7, 2012. Available at SSRN: https://ssrn.com/abstract=2145064

Stephanie Bennett (Contact Author)

affiliation not provided to SSRN ( email )

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