Fair warning? The First Amendment, compelled commercial disclosures, and cigarette warning labels.

• Author: Straub, Timothy J.
• Position: Introduction through II. Tobacco Warnings and the Issue of Interpreting Zauderer A. Conservative or Liberal Zauderer, p. 1201-1227

Introduction: The Family Smoking Prevention and Tobacco Control Act I. Paths to Zauderer A. Origins of the Prohibition Against Compelled Speech B. Commercial Speech Jurisprudence C. Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio D. Supreme Court and Disclosure Requirements Following Zauderer II. Tobacco Warnings and the Issue of Interpreting Zauderer A. Conservative or Liberal Zauderer B. Litigation Over the Tobacco Control Act's Cigarette Warning Labels 1. Discount Tobacco City & Lottery Inc. v. United States a. The Discount Tobacco City Dissent 2. R.J. Reynolds Tobacco Co. v. FDA a. The R.J. Reynolds Tobacco Dissent III. Strike a Match: Illuminating Zauderer A. "Purely Factual and Uncontroversial" 1. The Factual Component 2. The Uncontroversial Component B. "Reasonably Related to the State's Interest in Preventing the Deception of Consumers". C. "Unjustified or Unduly Burdensome Disclosure Requirements". Conclusion INTRODUCTION: THE FAMILY SMOKING PREVENTION AND TOBACCO CONTROL ACT

The United States has required cigarette packages to display warning labels since the 1960s. (1) The first warning label stated simply, "Cigarette Smoking May Be Hazardous to Your Health." (2) In 1984, Congress passed the Comprehensive Smoking Education Act requiring tobacco companies to display on every cigarette package four periodically-rotating health warnings. (3) The Act specified language for the four warning labels, (4) and required them to "appear in conspicuous and legible type in contrast by typography, layout, or color with all other printed material on the package." (5) Cigarette companies customarily printed the warnings in black and white down one side of the package. As other countries adopted more aggressive warning labels to combat smoking, the United States' regulatory structure went unchanged for twenty-five years. (6)

On June 22, 2009, President Obama signed the Family Smoking Prevention and Tobacco Control Act (7) ("Tobacco Control Act" or "Act") into law. (8) It gave the U.S. Food and Drug Administration (FDA) the authority to regulate the manufacture and sale of tobacco products. The Tobacco Control Act mandates that every cigarette package include one of nine concise phrases highlighting the deleterious effects of smoking. (9) The term "WARNING" is to be printed in all capital letters and seventeen-point font. (10) The Tobacco Control Act requires the warnings to cover the top half of both the front and back of the cigarette package. (11) Finally, the Act directed the FDA to promulgate "color graphics depicting the negative health consequences of smoking to accompany" the textual warnings. (12) The FDA was to develop the new graphic warning labels within two years. (13)

A day before the two-year deadline, on June 21, 2011, the FDA unveiled the nine new warning labels, (14) and on June 22, 2011, the FDA published its Final Rule implementing them. (15) The FDA had selected the nine graphical labels from a group of thirty-six proposed images after comprehensive studies of the effectiveness of each. (16) The chosen images included photographs and illustrations depicting a comparison of a diseased lung to a healthy lung, an autopsied torso, a set of teeth and gums ravaged by smoking, a cartoon image of child in an incubator, a close-up of a tracheotomy, a woman--perhaps a mother?--blowing smoke into a child's face, a distraught woman, a man attached to a respirator, and a man posing in a t-shirt on which is printed an anti-smoking slogan. (17) One of the statute's corresponding textual warnings respectively accompanies each image. (18) Also included in the graphic warning is the text "1-800-QUIT-NOW," the phone number for an anti-smoking hotline. (19) Under the Tobacco Control Act, the new warnings become effective fifteen months after the rule's publication. (20) This meant that every new package of cigarettes sold after October 22, 2012, was to bear one of the nine new graphic warning labels--absent judicial action. (21)

On August 16, 2011, shortly after FDA unveiled the new warning labels, five tobacco companies, led by R.J. Reynolds, filed suit in the District of the District of Columbia. (22) On August 19, 2011, in R.J. Reynolds Tobacco Co. v. FDA, the tobacco companies moved for summary judgment and requested a permanent injunction to prevent the FDA from enforcing the new warning labels. (23) The tobacco companies challenged the new warning labels, in part, on First Amendment grounds as unconstitutionally compelled speech. (24) The crux of. the tobacco companies' First Amendment argument was that the new cigarette warnings do not satisfy standards articulated by the Supreme Court in Zauderer v. Office of Disciplinary Counsel of Ohio, (25) in which the Court established a highly lenient standard for regulations that compel disclosures in commercial speech. (26) The tobacco companies argued that, because the standard articulated in Zauderer is inapplicable and the government has compelled them, private entities, to convey its ideological message, the new warning labels should be subjected to, and will fail, strict scrutiny. (27)

In the midst of the R.J. Reynolds litigation, the Western District of Kentucky and, subsequently, the Sixth Circuit was already considering a similar challenge to the underlying statutory provision of the Tobacco Control Act creating the graphic warning labels. The Sixth Circuit issued its opinion in Discount Tobacco City & Liquor, Inc. v. United States on March 19, 2012.

On February 29, 2012, the District of the District of Columbia granted the tobacco companies summary judgment, (28) thereby reinforcing its earlier decision preliminarily enjoining the graphic warning labels. (29) In doing so, the D.C. District Court ruled that Zauderer did not supply the appropriate standard of analysis for the new graphic warning labels--or, put another way, Zauderer's narrow exception to Supreme Court's compelled speech jurisprudence had not been satisfied. (30) The D.C. Circuit heard oral arguments in R.J. Reynolds on April 10, 2012, and weighed in with its opinion on August 24, 2012.

Part I of this Note explores the development of the Supreme Court's compelled speech and commercial speech jurisprudence, the two threads of jurisprudence informing the lenient standard for compelled commercial disclosure developed in Zauderer. (31) Next, this Note delves into the Court's reasoning in Zauderer, attempting to understand its relationship within the broader context of the Court's compelled speech jurisprudence and its commercial speech jurisprudence. (32) Part I concludes by analyzing subsequent Supreme Court decisions dealing with compelled disclosures to shed light on the scope and limits of the Zauderer exception. (33)

Part II focuses on the two recent decisions regarding the new cigarette warning labels, Discount Tobacco City & Lottery, Inc. v. United States (34) and R.J. Reynolds Tobacco Co. v. FDA, and situates them within the constellation of approaches taken to Zauderer. (35)

Part III attempts to provide a coherent unifying approach to Zauderer that respects each strand of the Court's reasoning and--in light of that unified approach--evaluates the recent decisions regarding the graphic cigarette warning labels. (36)

1. PATHS TO ZAUDERER

   The decision in Zauderer sits at the crossroads of two separate lines of First Amendment jurisprudence. The first is the presumptive invalidity of laws forcing private individuals to speak against their will. The second suggests that the First Amendment allows encroachments upon commercial speech it would not accept upon political, religious, or ideological speech. One question a court interpreting Zauderer must address is how that decision comports with these two broader First Amendment principles.

   1. Origins of the Prohibition Against Compelled Speech

      The notion that the First Amendment protects an individual's right hot to speak just as it protects an individual's right to speak begins with the Supreme Court's decision in West Virginia State Board of Education v. Barnette. (37) In 1943, the Court in Barnette struck down a West Virginia State Board of Education resolution that mandated that school children salute the American flag with raised right hand and upturned palm. (38) Only three years earlier, the Supreme Court had upheld a Pennsylvania public school's authority to mandate that its students salute the American flag and recite the Pledge of Allegiance. (39) In the wake of that earlier decision, the West Virginia legislature directed its schools to foster and perpetuate the "ideals, principles and spirit of Americanism." (40) In response, the West Virginia Board of Education adopted the resolution at issue in Barnette. (41) A student who failed to conform to the state's Pledge of Allegiance mandate risked expulsion and a criminal truancy charge. (42) A group of Jehovah's Witnesses, for whom honoring the flag amounted to idolatry and conflicted with deeply held religious beliefs, challenged the resolution. (43)

      The Barnette Court overturned its earlier decision in Minersville and held that a public school could not compel a student to recite the pledge or salute the flag. (44) The Court grounded its decision in the First Amendment generally, without specifying which of its clauses the law violated. (45) The case potentially implicated both the Free Exercise clause and the Free Speech clause. (46) The Court opaquely stated, "We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limits on their power and invades the sphere of intellect and spirit which it is the purpose of the First...