A disclosure-focused approach to compelled commercial speech.

• Author: Budzinski, Andrew C.

In 2010, the Food and Drug Administration passed a rule revising compelled disclaimers on tobacco products pursuant to the Family Smoking Prevention and Tobacco Control Act. The rule required that tobacco warnings include something new: all tobacco products now had to bear one of nine graphic images to accompany the text. Tobacco companies filed suit contesting the constitutionality of the rule, arguing that the government violated their right to free commercial speech by compelling disclosure of the graphic content. Yet First Amendment jurisprudence lacks a doctrinally consistent standard for reviewing such compelled disclosures. Courts' analyses typically depend on whether the regulation compels or restricts speech, how far that regulation extends, and why the government chose to regulate in the first place. This Note seeks to articulate a coherent standard--a disclosure-focused approach--for reviewing compelled commercial speech under the First Amendment. Under this disclosure-focused approach, courts would adopt a lenient standard of review for compelled disclosures of factual, uncontroversial information while reserving more exacting scrutiny for restricted speech or compelled ideological disclosures. This approach centers on the structure and content of the regulation rather than the governmental motive. Accordingly, the disclosure-focused approach aligns with the goal of commercial speech protection-namely, maximizing the information available to consumers.

TABLE OF CONTENTS INTRODUCTION I. LEGAL BACKGROUND A. Commercial Speech Doctrine B. Implementing the FSPTCA--Commercial Speech in the Context of Tobacco II. A DISCLOSURE-FOCUSED APPROACH TO REVIEWING COMPELLED DISCLOSURES A. Two Approaches to Determining When Zauderer Applies B. The Superiority of the Disclosure-Focused Approach 1. Policy of the First Amendment 2. Tenets of Commercial Speech Jurisprudence 3. Normative Implications III. APPLYING THE DISCLOSURE-FOCUSED APPROACH TO THE GRAPHIC WARNINGS RULE A. Images as Disclosure and Truth B. Are the Graphic Warnings Factual and Uncontroversial? C. The Governmental Motive--Applying the Zauderer Standard CONCLUSION INTRODUCTION

Does the Constitution prevent the government from requiring cigarette companies to tell the truth? In 2009, Congress passed the Family Smoking Prevention and Tobacco Control Act ("FSPTCA"). (1) Pursuant to that legislation, the Food and Drug Administration ("FDA") began to toughen regulation of tobacco companies, particularly with respect to product marketing and packaging. As part of the crackdown on these companies' commercial messaging, the FDA imposed a requirement that each package of cigarettes bear one of nine graphic images, each accompanied by a different written warning about the effects of tobacco use. (2) The nine warnings selected by the FDA appear as follows (3):

To ensure the message reached consumers, the FDA imposed additional requirements regarding the size and placement of the images on the package. (4)

Tobacco companies filed suit, arguing that the graphic warnings requirement violated their right to free speech and was therefore unconstitutional. (5) The companies' claims were rooted in First Amendment doctrine and its limited protection of "commercial speech," or speech by a commercial vendor to a consumer. (6) In Discount Tobacco City & Lottery, Inc. v. United States, the Sixth Circuit applied a rational basis standard to review compelled disclosures. (7) The court found that the statutorily required graphic warnings reasonably related to the government's interest in preventing consumer deception and did not unconstitutionally violate the companies' right to free commercial speech. (8) Months later, however, the D.C. Circuit, in R.J. Reynolds Tobacco Co. v. FDA, employed a more stringent intermediate scrutiny that had been traditionally applied to restrictions on commercial speech. (9) Applying that standard, the D.C. Circuit held that because the graphic warnings were unduly restrictive and did not directly advance a substantial governmental interest, the rule violated the plaintiffs' First Amendment rights. (10) Accordingly, the D.C. Circuit invalidated the rule under the Administrative Procedure Act. (11)

In one sense, these two decisions address separate issues. Discount Tobacco upheld the FSPTCA provision requiring graphic warnings. (12) R.J. Reynolds, by contrast, overturned the FDA's implementation of that provision. (13) But on one common question--which standard of review to use when evaluating whether a compelled disclosure passes First Amendment scrutiny--the courts gave different answers: Discount Tobacco applied a variation of rational basis review while R.J. Reynolds employed a standard closer to intermediate scrutiny. There is no principled reason the answer to this question should be different when evaluating the constitutionality of legislation versus the constitutionality of agency action--the standard should be the same. (14) Yet the courts in these cases came to different conclusions.

The two opinions illuminate the doctrinal confusion surrounding the appropriate standard of review for compelled commercial speech. The decisions examined a variety of factors, including the format of the regulation (as a disclosure rather than restriction of speech), the content of the warnings, and the government's reason for regulating. The R.J. Reynolds court, in particular, employed a deception-focused approach and placed enormous emphasis on whether the government acted to "prevent[ the] deception of consumers." (15) By contrast, the court in Discount Tobacco placed greater weight on the form and content of the regulation, moving closer to a disclosure-focused approach. Taken together, these opinions demonstrate that no clear framework exists to help courts apply the correct standard.

Thus, the controversy at issue in R.J. Reynolds and Discount Tobacco extends beyond cigarette packages. It implicates the authority of federal, state, and local governments to require more information about every product on the market. Indeed, the dispute calls into question the definition of "information" itself: To what extent do images convey a message? The FDA ultimately declined to appeal the R.J. Reynolds decision, opting instead to consider a new version of the rule. (16) But the tobacco warning cases demonstrate the need for a clear, doctrinally consistent standard of review--a standard lacking in First Amendment jurisprudence.

This Note seeks to articulate the appropriate legal standard for reviewing compelled commercial speech, advancing an approach that strikes a balance between the public's right to know what it is buying and the seller's competing right to speak as it pleases. This Note argues that courts should adopt and apply a disclosure-focused approach to compelled commercial speech that gives the government wide discretion in mandating disclosure of factual information to consumers. Part I introduces commercial speech doctrine, explains why compelled disclosure is different from other kinds of speech, and discusses how and why the FDA required tobacco companies to disclose graphic warnings. Part II critiques and rejects the deception-focused approach taken in Discount Tobacco and R.J. Reynolds, an approach that asks whether the disclosure specifically remedies deceptive advertising. Part II then argues for a disclosure-focused approach. Such an approach extends a lenient standard of review to regulations that compel disclosure of factual information and counsels courts to consider the government's intent only when applying that standard. Finally, Part III applies the disclosure-focused approach in the context of the FDA's graphic warnings rule. It also adds to compelled speech doctrine by showing how images, like text, can convey factual, uncontroversial information to consumers in furtherance of First Amendment principles.

1. LEGAL BACKGROUND

   The Supreme Court has established a separate line of cases relating to commercial speech that provides the foundation for reviewing compelled disclosures. Section I.A examines First Amendment doctrine, focusing on three seminal commercial speech decisions. (17) This discussion illustrates the tools currently available to courts when reviewing commercial speech regulations and explains why compelled speech merits a different analysis than restricted or prohibited speech. Section I.B examines compelled speech in the case of tobacco products specifically, providing historical and legal context for Discount Tobacco and R.J. Reynolds.

   1. Commercial Speech Doctrine

      The First Amendment does not require that all forms of speech receive similar treatment. Some statements receive greater protection than others, depending on both the content of the speech and the context in which it was made. (18) For example, courts vigorously guard a person's right to advocate a political position in furtherance of an "unfettered interchange of ideas." (19) Courts do not, however, protect a person's right to yell "fire" in a crowded theater, which puts other attendees in "clear and present danger." (20) Thus, courts have looked not only at what the statement says but why the speaker said it and what effect it had on others. (21)

      Commercial speech, or "expression related solely to the economic interests of the speaker and its audience," (22) receives lesser protection than other constitutionally guaranteed forms of expression. (23) In part, commercial speech is treated differently because of the "common-sense distinction" (24) between speech initiating an economic exchange and other speech--namely, commercial speakers have a "purely economic" interest in making the statement. (25) For example, a poster that urges support for a ballot measure is easily distinguishable from a poster that advertises for a local restaurant. The first poster attempts to convince the reader to take political action by casting her vote in a certain...