ANA Argues That FDA’S Graphic Warnings Rule for Tobacco Products Violates the First Amendment

September 16, 2011; Washington, D.C. - The ANA (Association of National Advertisers) has filed a "friend of the court" brief in opposition to a series of graphic warnings required by the Food and Drug Administration (FDA) on all tobacco products and advertising. Six tobacco companies filed a lawsuit in federal court in DC challenging the new rules and are seeking a preliminary injunction. The new FDA Graphic Warnings Rule was mandated by Congress under the Family Smoking Prevention and Tobacco Control Act of 2009. The FDA issued its final rule on June 21. ANA stated that "these gruesome, graphic warnings for all tobacco ads and packages are so excessive that they clearly violate the First Amendment." ANA was joined by the American Advertising Federation (AAF) in filing this brief. 

Dan Jaffe, ANA's Executive Vice President. Government Relations, stated: "The new text and graphics required by the FDA rule would convert product packages and ads into platforms for the government's viewpoint. While the government can require neutral and factual disclosures, it cannot turn packaging and advertising into graphic billboards for the government's messages."

The new warnings required by the FDA include highly disturbing 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 may be constitutionally permissible. The FDA should not be in the business of making lawful products and advertising difficult to look at in order to promote their regulatory agenda. 

The industry brief stated: "The Food and Drug Administration (FDA) rules being challenged here exemplify the Nanny State. They require producers of tobacco products to carry government-mandated graphic images and textual warnings to proselytize the public with the government's preferred message in an effort to change behavior, not to prevent deception or to convey product information about which consumers are unaware. As such, these rules are an unprecedented measure that confiscates plaintiffs' property for the purpose of skewing the marketplace of ideas."   

Jaffe stated: "While the FDA's rule relates to tobacco advertising, the underlying premise would set a very dangerous precedent for numerous controversial products. The government must not be allowed to tell companies what they must say and portray in their advertising. History shows that there is a wide range of products about which some believe the government knows 'best' and should have the power to regulate advertising in order to tilt public debate in a preferred direction. This is precisely the kind of paternalism that the First Amendment does not permit." 

The ANA joined with the AAF to file comments in January in opposition to the FDA's graphic warnings rule. Those comments are available here.  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 and the FDA's Graphic Warnings Rule will ultimately be thrown out by the courts." 

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

A copy of the brief is available here. 

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The mission of the ANA (Association of National Advertisers) is to drive growth for marketing professionals, brands and businesses, the industry, and humanity. The ANA serves the marketing needs of 20,000 brands by leveraging the 12-point ANA Growth Agenda, which has been endorsed by the Global CMO Growth Council. The ANA’s membership consists of U.S. and international companies, including client-side marketers, nonprofits, fundraisers, and marketing solutions providers (data science and technology companies, ad agencies, publishers, media companies, suppliers, and vendors). The ANA creates Marketing Growth Champions by serving, educating, and advocating for more than 50,000 industry members that collectively invest more than $400 billion in marketing and advertising annually.