Graphic Cigarette Warning Labels Back Under Legal Scrutiny

20 Pages Posted: 29 Mar 2021

Date Written: February 26, 2021

Abstract

The 2009 Tobacco Control Act required the U.S. Food & Drug Administration (FDA) to design graphic warning labels depicting the health consequences of smoking for prominent placement on cigarette packages and advertising. The tobacco industry filed a lawsuit against FDA claiming that the required graphic labels constituted compelled speech in violation of First Amendment speech rights, and courts ruled for the tobacco industry. Subsequently, FDA thoroughly redesigned the graphic labels, but the tobacco industry immediately filed a similar lawsuit against FDA again on First Amendment grounds. This article examines the delicate balance between First Amendment speech rights versus the right of the public to receive truthful, accurate, and understandable public health information. The article argues that the newly designed warning labels should easily pass First Amendment analysis, either on the basis of the Zauderer standard of review or the Central Hudson test. The need for new warning labels on tobacco products and advertising is a critical intervention to curb cigarette smoking, especially among the young. The legal analysis in this article marshals arguments that the First Amendment does not prohibit the requirement of the new tobacco warning labels. Commercial speech receives First Amendment protection primarily for the benefit of the public (listeners) and not the tobacco industry (compelled speakers). The balance favors the right of the public to receive accurate information about critical matters affecting health.

Keywords: Tobacco, Cigarette Warning Labels, First Amendment, Commercial Speech

Suggested Citation

Curfman, Gregory, Graphic Cigarette Warning Labels Back Under Legal Scrutiny (February 26, 2021). Available at SSRN: https://ssrn.com/abstract=3793916 or http://dx.doi.org/10.2139/ssrn.3793916

Gregory Curfman (Contact Author)

American Medical Association ( email )

330 N. Wabash Avenue
41st Floor
Chicago, IL 60611
United States
9785059696 (Phone)

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