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The Butt Stops Here: The Tobacco Control Act’s Anti-Smoking Regulations Run Afoul of the First Amendment

48 Pages Posted: 14 Sep 2012 Last revised: 11 Aug 2014

Danielle Weatherby

University of Arkansas - School of Law; Whiteman, Osterman & Hanna, LLC

Terri Day

Barry University - Dwayne O. Andreas School of Law

Date Written: September 13, 2012


This article considers the First Amendment implications of the 2009 Family Smoking Prevention and Tobacco Control Act's mandate that cigarette packages display one of nine color graphic images, depicting the negative health consequences of smoking. The graphic images chosen by the FDA for publication on all cigarette packages this Fall elicit a strong physiological and emotive response, which the government hopes will drive people to stop smoking. Under Supreme Court precedent, factual disclosures on consumer products are subject to limited judicial review. Because this mandate compels private entities to adopt and express government's highly-subjective, controversial speech, it does not fall within the confines of the Central Hudson commercial speech doctrine, which generally tolerates compelled commercial speech disclosures that are purely factual and non-controversial. As such, this lower standard of review should not apply. A recent Supreme Court case held that strict scrutiny applies to content-based speech regulations, even in the commercial context. Therefore, this article suggests that the Tobacco Control Act's graphic images mandate should be reviewed under strict scrutiny. Given the current split in the Circuits and the potential “slippery slope” of government using speech regulations to control unhealthy habits, the constitutionality of the graphic images will likely reach the Supreme Court. Ultimately, where so many less restrictive alternatives exist to combat the national smoking epidemic, it is unlikely that the government will satisfy its heavy burden. Government cannot “conscript” private companies into being a “mini-billboard” for its anti-smoking message. In conclusion, this article posits that, while its mission to eradicate smoking is an eminently worthy goal, Congress cannot construct regulations that violate the First Amendment. Indeed, if the graphic images mandate passes First Amendment scrutiny, the next thing we might see are pictures of clogged arteries on potato chip packages or an image of a morbidly-obese child on an ice cream carton.

Keywords: Family Smoking Prevention Tobacco Control Act, graphic images mandate, First Amendment, compelled commercial speech disclosures, commercial speech doctrine, use of speech to regulate unhealthy consumer habits

JEL Classification: K10

Suggested Citation

Weatherby, Danielle and Day, Terri, The Butt Stops Here: The Tobacco Control Act’s Anti-Smoking Regulations Run Afoul of the First Amendment (September 13, 2012). Albany Law Review, Vol. 76, 2012; University of Arkansas Research Paper No. 14-18. Available at SSRN:

Danielle Weatherby

University of Arkansas - School of Law ( email )

313 Leflar Law Center
Fayetteville, AR 72701
United States

Whiteman, Osterman & Hanna, LLC ( email )

One Commerce Plaza
Albany, NY 12260
United States

Terri Day (Contact Author)

Barry University - Dwayne O. Andreas School of Law ( email )

6441 East Colonial Drive
Orlando, FL 32807
United States

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