The FDA's New Graphic Warnings for Tobacco Products Violate the First Amendment

June 21, 2011

The Food and Drug Administration (FDA) today unveiled a set of nine new graphic warnings that must appear on all tobacco packages and ads next year.  We believe that these gruesome, graphic warnings are excessive and violate the First Amendment.  The new text and graphics requirements would convert product packages and marketing into platforms for the government’s viewpoint.  While the government can require neutral and factual labeling, it cannot turn packaging and advertising into graphic billboards for the government’s messages.

The new warnings required by the FDA include graphics of cadavers, smoke coming out of a hole in a throat and a lung filled with cigarette butts.  These types of labels clearly are not constitutionally permissible.

ANA joined with the American Advertising Federation (AAF) to file comments in January in opposition to the FDA’s proposal.  Those comments, which were written by noted First Amendment attorney Bob Corn Revere with the law firm Davis Wright Tremaine LLP, are available here

While the FDA’s rule relates to tobacco advertising, the underlying premise would set a very dangerous precedent for all other marketers – that the government can tell companies what they must say and portray in their advertising.  This is precisely the kind of paternalism that the First Amendment does not permit.  ANA now will seriously consider legal avenues for challenging the new graphic warnings.

Last year, ANA filed a “friend of the court” brief with the U.S. Court of Appeals for the Sixth Circuit in a lawsuit brought by six major tobacco companies challenging the marketing restrictions in the Tobacco Control Act.  That law contains the most burdensome advertising restrictions ever passed by the Congress.  We are very hopeful that those restrictions will also ultimately be thrown out by the Supreme Court.

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