ANA Argues That FDA’s Proposed Graphic Warnings for Tobacco Products Violate the First Amendment

The Association of National Advertisers (ANA) has filed in opposition to a series of graphic warnings proposed by the Food and Drug Administration (FDA).  ANA stated that these gruesome, graphic warnings for all tobacco ads and packages are “excessive and violate the First Amendment.”  ANA was joined by the American Advertising Federation (AAF) in filing these comments with the FDA on proposed options for the illustrated warnings that would be required under the Family Smoking Prevention and Tobacco Control Act of 2009.

The comments argue that the Notice published last year by the FDA “proposes vivid and shocking anti-smoking graphics to accompany new textual warnings on cigarette ads and packages without any consideration of whether they pass constitutional muster. . . . Rather, the new text and graphics requirements would convert product packages and marketing into platforms for the government’s viewpoint.  The FDA should not be in the business of making lawful products and advertising ‘difficult to look at.’”

The warnings proposed by the FDA include graphics of cadavers, smoke coming out of a hole in a throat and a lung filled with cigarette butts.  These are not the type of neutral and factual labels that are constitutionally permissible.

Dan Jaffe, ANA’s Executive Vice President, Government Relations stated:  “While the FDA’s Notice relates to tobacco advertising, the underlying premise of the  proposal would set a very dangerous precedent for all other marketers – that the government can tell companies what they must say in their advertising.  This is precisely the kind of paternalism that the First Amendment does not permit.”

The industry letter notes that the U.S. Supreme Court has held that government entities should only regulate speech as a ‘last resort,’ and yet there is clear evidence that other non-speech restricting means of protecting minors from tobacco products are effective and could be more effective if fully implemented: “By the government’s own admission, the effectiveness of comprehensive control programs as compared to regulating marketing – if ever tried in earnest – is undeniable.   . . The First Amendment requires the government to take these non-speech related steps before forcing companies to demonize their own product packaging and advertisements with disturbing, government-mandated visuals.”

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.  Jaffe noted: “That law contains the most burdensome advertising restrictions ever passed by the Congress.  We are very hopeful that those restrictions will ultimately be thrown out by the Supreme Court.  In the meantime, the FDA’s Notice did not even mention the First Amendment issues involved here.”

The industry comments were written by Robert Corn-Revere, noted First Amendment attorney with the law firm Davis Wright Tremaine LLP.