Part I: Mandated
warnings
Judge Clay’s opinion
The court began its analysis of the Act with the new
mandated warnings. The Act required tobacco manufacturers to “reserve a
significant portion of their packaging—the top 50% of the front and back of
cigarette packaging, 30% of the front and back of smokeless tobacco packaging,
and 20% of tobacco advertising—for full color, graphic health warnings issued
by the FDA.” Plaintiffs argued that the scale and intrusiveness of the new
warnings was disproportionate to the legitimate interest in conveying factual
information to prevent deception, especially since consumers already
overestimate the risks of tobacco. Furthermore, they argued, the new warnings
were unduly burdensome because they overshadowed plaintiffs’ own speech.
Moreover, the required graphic images went beyond “mere factual warnings” and
instead required the plaintiffs to convey Congress’s message that tobacco use
is “socially unacceptable” by mandating “subjective and highly controversial
message[s].” Basically, since the new warnings were unnecessary to convey the
facts, which were already “universally known,” the plaintiffs argued that they
were unconstitutional.
The government responded that an “information deficit” still
existed, especially among juveniles. Adolescents misperceive the magnitude of
harm from smoking and the danger of becoming addicted, especially when they
considered their own behavior. Thus, adolescents were likely to start tobacco
use and then be unable to stop. It’s true that adolescents significantly
overestimate the risk of developing lung cancer from smoking, but the
government provided evidence that they underestimate
the degree to which smoking can shorten life and the likelihood that they will
suffer tobacco-related disease. Smokers, including adolescent smokers, were
more than twice as likely as nonsmokers to doubt that tobacco use, even for
30-40 years, would cause death. As the District Court for the District of
Columbia has found, most people don’t completely understand smoking-related
diseases or addiction. Instead, they are superficially aware that smoking is
dangerous. Thus, the government maintained, the point of the new warning was to
ensure that the warnings are actually seen by consumers. Significant package
real estate, moreover, remained for plaintiffs.
The court then gave special attention to plaintiffs’
argument for strict scrutiny, which was that the government was attempting to
make commercial speakers into its “mouthpiece” for a “subjective and highly
controversial marketing campaign expressing its disapproval of their lawful
products.” First of all, there was no indication that the textual element of
the new warning was subjective or highly controversial. The warnings were the
same or similar to those that had been required since 1965, and plaintiffs
didn’t submit any evidence that the content was disputed in the scientific or
medical community. Plaintiffs relied on their expert, Dr. Kip Viscusi, but his
methodology was “sometimes questionable” and his conclusions were largely based
on research commissioned by “tobacco industry law firms specifically for use in
litigation.”
Judge Clay on images
Moreover, the Act required that images required by the FDA visually
“depict[] the negative health consequences of smoking” in accompaniment with
the label’s textual warnings. And here’s where Judge Clay’s dissenting opinion
kicks in: he would hold that “there can be no doubt that the FDA’s choice of
visual images is subjective, and that graphic, full-color images, because of
the inherently persuasive character of the visual medium, cannot be presumed
neutral.” This is image as bogeyman, and it’s a position certainly not unknown
to the law,
as
I’ve written. Because visual
images “are subjective and cannot be categorized as mere health disclosure
warnings,” Judge Clay found the strict scrutiny argument “not wholly
unpersuasive.”
Unpacking this a bit: Justice Stevens took the position that
commercial speech regulation should be analyzed for its purpose. If it’s to
preserve a fair bargaining transaction, then that’s the end of the matter. If
it’s to accomplish some other purpose, then ordinary First Amendment scrutiny
should apply, not the more relaxed Central
Hudson standard. Implicitly, Judge Clay agrees, with the addition that a
“subjective” message can’t be considered to protect the bargaining
transaction—though I think that’s quite an odd addition. Commercial sellers use
subjective images all the time, in fact they predominantly use images and nonfactual matter to make their
products attractive; if we think that distorts rational judgment (which,
recall, we must in order to make Judge Clay’s conclusion possible) then Judge
Clay’s rule makes it impossible for the government to correct that distortion
with a countervailing emotion—something he will essentially acknowledge by the
end of his discussion. And, since Judge Clay’s position, along with that of the
majority, is also that the government can’t prevent tobacco manufacturers from
using nonfactual images in the first place, the government would then be
completely disabled from combating this decision-distorting practice.
Regardless, plaintiffs argued that they were entitled to
strict scrutiny because required “sexually explicit” labels on video games had
been struck down by the Seventh Circuit, and Brown v. Entm’t Merchants Ass’n,
131 S. Ct. 2729 (2011), likewise struck down a law barring sales of violent
video games to minors and requiring an “18” label. But, Judge Clay wrote, these
cases involved not just warning requirements, but also affirmative limits on
speech in the form of sales restrictions. (Note this smooth move, which also
pops up later: a sales restriction is now a limit on speech! This is why the
First Amendment is the new Lochner. The reasoning here is inconsistent with Central Hudson,
which protects only commercial speech about products that may lawfully be sold;
if they may not lawfully be sold to a certain group, offering to sell them to a
member of that group is completely unprotected by the First Amendment. The majority will later note Judge Clay’s
conflation of bans and warnings, but accept that a sales restriction is a limit on speech.)
More to the point, Judge Clay recognized, those cases were
about core speech: expression that was being sold. Those regulations were based
on the harms the government determined were caused by the video games—the
speech—and not harms caused by tobacco. The Supreme Court has already upheld the
proposition that, “[t]o avoid giving a false impression that smoking [is]
innocuous, the cigarette manufacturer who represents the alleged pleasures or
satisfactions of cigarette smoking in his advertising must also disclose the
serious risks to life that smoking involves.” Strict scrutiny did not apply.
Judge Clay nonetheless concluded that the requirement of
color images was unconstitutional, both facially and as applied, and that in
the interests of efficiency the court should have decided the as-applied
challenge. Not all disclosures survive First Amendment scrutiny: under Zauderer, they must be reasonably related to the government’s interest in
preventing deception. It’s true that adolescents aren’t sufficiently aware of
the actual risks of tobacco use: current warnings have failed. But “[t]he primary
deficiency in the form of the current warnings is that they are easily overlooked.”
The government analogized these warnings to prescription drug warnings, but
those do not require color graphics, and drug warnings “present purely factual
information, with no subjective component.” (My guess is that Judge Clay thinks
the FDA “black box” warnings are just rational and nonsubjective, even though they
are supposed to make you stop and worry.) The requirement of a large scale color graphic
was “simply unprecedented.” (Of course, one might think the death toll of
tobacco is equally “unprecedented,” not to mention the strategems used by the
industry to stave off regulation and create uncertainty about the health
effects of tobacco, echoing still today.)
Judge Clay concluded that the government hadn’t shown that
color graphics were properly or reasonably tailored to address the continuing
information deficit. “It appears, from the government’s own evidence, that the
color graphic warning labels are intended to create a visceral reaction in the
consumer, in order to make a consumer less emotionally likely to use or
purchase a tobacco product.” As
one
study put it, graphic warning labels can help consumers “appreciate the
risks of smoking” by creating “unfavorable emotional associations,” whereas
“[b]land descriptions” are unlikely to create such associations “because they
fail to attract attention or to make the health danger sufficiently
compelling.” While a requirement of truthful disclosure is permissible, “even
if perhaps frightening,” aiming “to simply frighten consumers or to otherwise
attempt to flagrantly manipulate the emotions of consumers as [the government]
seeks to do here” was not okay. ((1) I sure wish someone would tell that to the
states mandating that various nonfactual claims be made, and pictures be shown,
to women seeking abortions. (2) As marketers already know, there are
no decisions without emotion. An
emerging body of scholarship,
as set
out in this article by Kathryn Abrams and Hila Keren, attempts to integrate
this insight with law.)
Judge Clay continued: The government argued that the
industry’s own colorful images “can evoke a visceral response that subsumes
rationale decision-making, and “[t]his principle applies equally when seeking
to discourage behavior.” Given that, the government failed to persuade him that
color graphics were reasonably tailored to the problem. Other options could
deter youth smoking.
The majority found that color graphics would materially
advance the interest in counteracting the information deficit among young
people, but Judge Clay disagreed, because “color graphics cannot accurately
convey all of the health risks associated with tobacco use. Although elements
of the color graphics requirement may remain constant, the underlying message
that they convey will vary with the interpretation and context of its viewer. The
color graphics can be seen one way by some smokers, yet another by other
smokers—one way by some non-smokers and yet an entirely different interpretation
by other non-smokers.” (As we all know, the meaning of words is invariant
across people. That’s why patents and contracts are so easy to interpret, not
to mention legislation!)
Thus, Judge Clay would find the color graphic requirement
unconstitutional. In a footnote, he approved the D.C. district court’s recent
ruling upholding the industry’s as-applied challenge to the graphics adopted by
the FDA. These graphics were, that court found, “neither designed to protect
the consumer from confusion or deception, nor to increase consumer awareness of
smoking risks; rather, they were crafted to evoke a strong emotional response
calculated to provoke the viewer to quit or never start smoking.” R.J. Reynolds
Tobacco Co. v. U.S. Food and Drug Admin., 2012 LEXIS 26257 (D.D.C. Feb. 29,
2012). Indeed, that court (using some pretty emotional language of its own,
which I find at least ironic) found the graphics false and misleading—since not
everyone’s tar-soaked lungs will look like the pictures, and since there were
cartoons which are by definition untrue—and further found that there were less
restrictive alternatives.
Judge Clay on bigger text
Now we’re back to Judge Clay’s opinion for the unanimous
court: the increased size and placement requirements were reasonably related to
the assault on the consumer “informational deficit.” Larger warnings would
materially affect consumer awareness and decisions. Plaintiffs didn’t show that
the remaining portions of the packaging were insufficient to place their own
brand names, logos, or “other information” (whatever that might be). Instead,
they argued that the big warnings might deter smokers from buying the product “by
making it appear unhealthy or otherwise unattractive.” Judge Clay: “But this is,
in some ways, the purpose of the labels—to provide truthful information
regarding the health consequences of the product in order to decrease ‘the use
of tobacco by young people and dependence on tobacco.’” (Comment: Make tobacco
appear unhealthy?
Nay, it is; I know not “seems.”
But that’s the beauty of visual language: images are truth, or images are not
reality, as needed for the argument one is making at any particular moment.
Judge Clay is skimming over the reality that words have emotional power too and
that one’s reaction to a giant textual warning might not be perfectly
calibrated to the factual content of that warning. And that’s of course setting
aside the question of what such calibration might look like, which is easy here
because smoking is so bad for people.)
The image
requirements: the majority opinion
Writing for the majority, Judge Stranch (writing also for
Judge Barrett) reiterated some of Judge Clay’s opinion and explained why the
majority diverged on the image based warnings.
First, the majority refused to consider an as-applied challenge to the
image warning requirements, based on the timing of the plaintiffs’ challenge;
the district court’s reasoning; the plaintiffs’ explicit statements that they
were making a facial challenge; and Supreme Court precedent on what counts as a
facial versus an as-applied challenge.
It’s hard to win a facial challenge.
With that out of the way: Under Zauderer, a disclosure requirement for commercial speech designed
to avoid deception is assessed to see if it has a rational basis. The Supreme Court rejected straight-up application of Central Hudson to disclosures based on the “material
differences between disclosure requirements and outright prohibitions on
speech.” Commercial speakers have
minimal interests in avoiding the provision of any particular factual
information. Unjustified or unduly
burdensome disclosure requirements might violate the First Amendment by chilling
protected commercial speech. But, as
long as the disclosures are reasonably related to the state’s interest in
preventing deception, the advertiser’s rights are adequately protected. The dissent failed to recognize the
difference between restricting speech and requiring disclosures.
In Zauderer, the
government didn’t require the lawyer to adopt or proclaimed a state-sanctioned
opinion; instead it required him to include factual information about the
limits of a contingency fee arrangement.
More recently, Milavetz, Gallop & Milavetz, P.A. v. United States, 130 S. Ct. 1324 (2010), reaffirmed Zauderer, holding required
disclosures constitutional when debt-relief agencies were required to disclose
pertinent information that could help consumers avoid deception. Once the Supreme Court determined that the
disclosures were reasonably related to preventing deception, it didn’t inquire
further into whether the disclosures were unjustified or unduly burdensome.
National Elec. Manufacturers Association v. Sorrell, 272
F.3d 104 (2d Cir. 2001), further demonstrated that required factual disclosures
for commercial speech should be subjected to rational basis review, looking
only for a reasonable relationship between the government’s goal and the
requirement. Sorrell showed that this is true even if the required disclosure’s
purpose is not just to avoid consumer deception. Sorrell
rejected a challenge to a law requiring manufacturers of mercury-containing
lamps to disclose this fact on their products and packaging and to disclose
that consumers should dispose of the products as hazardous waste. The court of appeals upheld the required
disclosure, because the information was factual and posed little risk of
forcing commercial speakers to adopt state-sanctioned opinions with which they
disagreed. Though the disclosure’s purpose
was not to prevent deception per se, it was meant to protect human health and
the environment by reducing the amount of mercury released. This goal was “inextricably intertwined” with
“better inform[ing] consumers about the products they purchase,” and the
disclosure requirement achieved that goal by making it more probable that
purchasers would properly dispose of the lamps, reducing pollution. Even if the statute ultimately failed to
reduce all or most mercury pollution in the state, it had a rational
relationship to that goal.
“Sorrell relied on
common sense rather than evidence to conclude that the disclosures would lead
some consumers to change their behavior, thereby showing that constitutionality
does not hinge upon some quantum of proof that a disclosure will realize the
underlying purpose. A common-sense analysis will do.” (Compare this to what the court says about
continuity programs in that part of the opinion, where the unanimous panel
disparaged the available evidence that they were attractive to
adolescents. This difference in the
standard of proof can be defended by the difference between disclosures and
bans, but it highlights the difficulty with treating conduct as speech.) The disclosures didn’t have to be shown to be
effective: lamps aren’t the largest source of environmental mercury, but the
state didn’t have to address the biggest problem first as long as it didn’t
violate a fundamental right. And a right
not to divulge accurate information is not fundamental.
Likewise, the Sixth Circuit has already held that Zauderer applies not only when the
required disclosure “targets speech that is inherently misleading,” but also
“where, as here, the speech is potentially misleading.” Int’l Dairy Foods Ass’n
v. Boggs, 622 F.3d 628 (6th Cir. 2010). An advertiser’s interest in not providing
factual information is minimal, so the disclosure requirements need only pass
rational basis review.
With this background, the Act did fine. No one disputed the truth of the textual
warnings. The Act also directed the FDA
to require color graphics “depicting the negative health consequences of
smoking.” On a facial challenge, the
question was whether any set of circumstances exists under which the statute
would be valid. To invalidate the
requirement, plaintiffs would need to show that images
can’t convey the negative health consequences of smoking
accurately, “a position tantamount to concluding that pictures can never be
factually accurate, only written statements can be.” The majority concluded that this was “at odds
with reason.” Moreover, a “graphic”
warning could consist only of words, such as “WARNING: Tobacco smoke can harm
your children” “written in what appears to be a child’s handwriting.” This statement would be factual and accurate,
and therefore subject only to rational basis review. (Of course, all fonts convey messages; we
just notice some of them more easily than others. It does seem unwise for courts to get into
the weeds of package design, though
I
thought that was true in Boggs too.)
The majority envisioned many graphic warnings that could be
factual disclosures: “a picture or drawing of a nonsmoker’s and smoker’s lungs
displayed side by side; a picture of a doctor looking at an x-ray of either a
smoker’s cancerous lungs or some other part of the body presenting a
smoking-related condition; a picture or drawing of the internal anatomy of a
person suffering from a smoking-related medical condition; a picture or drawing
of a person suffering from a smoking-related medical condition; and any number
of pictures consisting of text and simple graphic images.”
Students look at pictures to learn factual information about
the human body all the time. A picture
of a specific person is not opinion just because people differ; medical
students learn valuable factual information by examining pictures and images of
the human body. If a picture is an
opinion because different people would manifest a particular medical condition
differently, then “textual or pictorial descriptions of standard medical
conditions must be opinions as well. People with the same illness can and often
will suffer a variety of differing symptoms. But one wouldn’t say that a list
of symptoms characterizing a particular medical condition is nonfactual and
opinion-based as a result. So too with graphic images.”
A couple of comments: (1) This discussion echoes debates
over
what
constitutes objectivity in science; some scientists criticized images as
inherently subjective, while others used them to show the ideal type of
whatever was at issue—distilled truth or truth-to-nature—and still others used
images to show truth as filtered through expert judgment. From the perspective of each, the other
concepts of truth are or can be misleading—but I don’t think that the First
Amendment mandates a choice between these epistemologies. (2) Does this
reasoning mean that the FTC’s
Guides
on endorsements are constitutionally suspect? One of the major recent changes was greater
disapproval of testimonials—especially before/after pictures—that didn’t
represent standard results, unless consumers actually understand that the
results wouldn’t be typical. It would
seem, by the majority’s reasoning, that if these pictures are “truthful” in the
sense that they represent accurately what a particular person looked like before and
after treatment then they are constitutionally protected. The FTC, however, made its change after years
of evidence that consumers interpreted these images and other testimonials as
promising typical results despite the standard “results not typical”
disclaimer. That evidence
might be enough to make a difference.
Back to tobacco: plaintiffs argued that Zauderer only covers “purely factual and noncontroversial”
disclosures. But Zauderer also spoke elsewhere of disclosures providing “factual”
and “accurate information.” Milavetz demonstrated that a disclosure
need not be purely factual and noncontroversial, because the Court never asked
whether the disclosure there satisfied that standard.
Indeed, Zauderer “eviscerates”
the argument that an image can’t be accurate and factual. There, the lawyer challenged a rule
forbidding illustrations in lawyer ads.
One of his ads used a drawing of an IUD, and the state defended its rule
by arguing that images created unacceptable risks of misleading the public by
playing on the emotions and conveying false impressions. Zauderer held to the contrary: “the use of illustrations or
pictures in advertisements serves important communicative functions: it
attracts the attention of the audience to the advertiser’s message, and it may
also serve to impart information directly.”
Because the IUD drawing was accurate, the state’s ban was
overinclusive. Though this dealt with a
restriction on commercial speech rather than a disclosure, the reasoning “demonstrates
that a picture can be accurate and factual. If a picture can accurately
represent an IUD, then there is no reason why a picture could not also
accurately represent a negative health consequence of smoking, such as a
cancerous lung.”
The dissent essentially adopted the reasoning rejected in Zauderer by arguing that graphic
warnings would evoke a “visceral” reaction that subsumes rational
decisionmaking. Even if this were
sometimes true, and even if a visceral response took the disclosure out of Zauderer’s ambit, some graphic warnings
wouldn’t do this, dooming a facial challenge.
The health risks of smoking tobacco are facts (unlike, for example, an
opinion about what counts as a “sexually explicit” video game).
The warnings were designed to promote greater
public understanding of the risks of smoking, about which consumers have long
been misled. “Tobacco manufacturers and
tobacco-related trade organizations … knowingly and actively conspired to
deceive the public about the health risks and addictiveness of smoking for
decades.” Even setting aside this
extended deception, ads promoting smoking deceive consumers if they don’t also
warn of tobacco’s serious health risks—the FTC so found and the Supreme Court
cited its conclusion with approval.
“In the face of this deception stand the existing warnings
required before the Act. They have not been revised since 1984 and do not
effectively convey the risks of smoking, primarily because the warnings are
easily overlooked.” Empirical evidence
consistently indicates that these warnings don’t work. In one study, for example, more than 40% of
adolescents didn’t even view the warning, and 20% looked at it but didn’t read
it. The Institute of Medicine concluded in 2007 that “the basic problems with
the U.S. warnings are that they are unnoticed and stale, and they fail to
convey relevant information in an effective way.”
Another problem, strongly supporting the graphic warnings,
is that the textual warnings require a college reading level, which makes them
inappropriate for young people and for anyone with poor reading ability,
including ESL speakers (a category that will only increase) and people with
reading disorders. “Given these
ineffective warnings, the evidence unsurprisingly shows that most people do not
understand the full dangers of tobacco use,” and young people are especially
vulnerable in this regard. “A warning
that is not noticed, read, or understood by consumers does not serve its
function. The new warnings rationally address these problems by being larger
and including graphics.”
Common sense, as in Sorrell,
supported the conclusion that some consumers would change their behavior in
response to the new warnings.
Plaintiffs’ own argument that they needed to use color and graphics in
advertising to communicate effectively with consumers supported the conclusion
that the graphic warnings were reasonable.
“If color and graphics are necessary for Plaintiffs to effectively
communicate and capture the audience’s attention, then warnings using color and
graphics should more effectively convey risks than do purely textual warnings.
Plaintiffs essentially admitted this point by stating at oral argument that
‘color and imagery are the most effective
way to get your ad noticed and communicate a message.’” Since the risks of tobacco use are material
to consumers, such disclosures are reasonably related to preventing consumer
deception.
Even apart from that, there was “abundant” evidence from
other nations that larger, graphic warnings improved consumer understanding and
decisions. As one study concluded,
“[S]mokers are more likely to recall larger warnings, as well as warnings that
appear on the front of packages as opposed to on the sides,” and because “there
is evidence that smokers with less education are less likely to recall health
information in text-based messages,” warnings incorporating graphics “may be
particularly important” in communicating with those who have less education.
Canada implemented nearly identical warnings in 2000, and large percentages of
smokers reported that these were effective in providing them important health
information; Canadian smokers “were more likely to report cigarette packages as
a source of information about health risks of smoking than smokers in the
United States or other countries with only textual warnings.” In Australia, graphic warnings made
adolescents more likely to read, think about, and discuss the warnings. Compared to the UK, which adopted new
warnings but didn’t include graphics, Australia’s results were better at
increasing cognitive processing and foregoing cigarettes—“the two strongest
predictors of quitting smoking.” “In
sum, there is more than substantial evidence to support the conclusion that
larger warnings incorporating graphics would promote greater public
understanding of the health risks of using tobacco.”
These results were no surprise, because pictures are easier
to remember than words. General studies
of warnings show that pictures plus conspicuous print make it easier to notice
warnings and then to remember them. “In crafting warnings that effectively convey
the serious health risks of smoking, Congress was simply following the findings
of science, findings that Plaintiffs concede in their effort to protect their
own advertising.” Comment: Consider the
implications of plaintiffs’ arguments for failure-to-warn doctrine or other
attempts to communicate to a multilingual society. Is a judicially or legislatively imposed
mandate to use the poison sadface or other graphic warning unconstitutional
because it’s not textual and because it’s likely to trigger a shorthand
(visceral) stay-away reaction? See
generally Marjorie A. Caner, Products Liability: Failure to Provide Product
Warning or Instruction in Foreign Language or to Use Universally Accepted
Pictographs or Symbols, 27 A.L.R. 5th 697 (1995).
Plaintiffs argued that consumers already know, and even
overestimate, the health risks of tobacco.
But that was irrelevant, because the test is whether the warnings are
reasonably related to the purpose: “[A]n advertiser’s rights are adequately
protected as long as disclosure requirements are reasonably related to the
State’s interest in preventing deception of consumers.” Zauderer, 471 U.S. at 651.
Moreover, the factual premise was false; the conclusions of plaintiffs’
expert Kip Viscusi had previously been fully considered and rejected. Plaintiffs then argued that the warnings
wouldn’t reduce tobacco use, again relying on Viscusi. This too was irrelevant even had it been
true. “What matters in our review of the
required warnings is not how many consumers ultimately choose to buy tobacco
products, but that the warnings effectively communicate the associated health
risks so that consumers possess accurate, factual information when deciding
whether to buy tobacco products. As shown above, the warnings effectively convey
this factual information, just as they were designed to do.”
Finally, plaintiffs argued that the warnings were unduly
burdensome because their size drowned out plaintiffs’ own speech. Again, the test was whether the warnings were
reasonably related to the government’s interest in preventing deception; if so,
they wouldn’t be unduly burdensome.
Since the size requirement was amply supported, that was the end of the
matter, and in any event plaintiffs hadn’t shown that the remaining portions of
the packaging were insufficient. Anyway,
if the warnings wouldn’t reduce use, then plaintiffs certainly wouldn’t
experience an undue burden.
The majority then addressed the dissent directly. The dissent found the graphics to be not
reasonably tailored to the problem, but the evidence was that current textual
warnings aren’t effective. More to the
point, disclosure requirements don’t need to satisfy Central Hudson’s fit requirements, which apply to bans on a
commercial speaker’s own speech.
The dissent argued that graphics “cannot accurately convey
all of the health risks associated with tobacco use.” The majority responded,
“Possibly true, but so what? The list of health risks from using tobacco is so
enormous that a disclosure could hardly be faulted if it could not convey all
of them.” It recited myriad cancers and
other health harms caused by smoking and by secondhand smoke. A disclosure need not address every
conceivable problem to be constitutional.
“Moreover, the dissent’s point is undercut by our unanimous
determination that the textual warnings are constitutional even though they
also address only a fraction of these health risks.”
As for the dissent’s reliance on the D.C. district court
decision invalidating the FDA’s choice of images, the majority was unimpressed.
First, the Act itself doesn’t require images that provoke a visceral response,
only images that depict the negative health consequences of smoking. Second, the majority vigorously disagreed
with the premise that a disclosure that provokes a visceral response “must fall
outside Zauderer’s ambit. Facts can
disconcert, displease, provoke an emotional response, spark controversy, and
even overwhelm reason, but that does not magically turn such facts into
opinions.” (Consider the discussion of Osama
bin Laden’s death versus the suppressed photos of his dead body. Both represent facts, and those facts are
likely to make people react emotionally, though the consensus is that the
pictures will do so more readily.)
Because graphics can present factual health risk information, which
fights consumer deception, a graphic warning requirement is constitutional.
The majority finished with a reminder of how we got here:
decades of deception by tobacco companies.
“It is beyond cavil that adolescents are a target of the marketing
expertise of Tobacco Companies, a targeting that exists precisely because of
intertwined advantages—or for the young, disadvantages—the coupling of
immaturity of risk perception with the evidence that the vast majority of
regular smokers made the decision to begin smoking as an adolescent.” Plaintiffs’ products kill users and, often,
their family members. Graphic and
textual warnings are therefore justified.
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