August 29th, 2012
Does Cigarette Marketing Count as Free Speech?
By Garrett Epps
Historians of free expression will one day write that early 21st century America was a place where the Supreme Court held that schools could punish kids who make a dumb joke that some humorless prig might think advocated drug use, but that tobacco companies could not be stopped from marketing their products near schools, and where a federal court decided that the federal government could not require cigarette companies to give “inflammatory” warnings that cigarettes kill.
In other words, free speech has taken on a strange shape in recent years.
These reflections are sparked by the decision of the District of Columbia Circuit Court in R.J. Reynolds Tobacco Co. v. Food and Drug Administration. By a vote of 2-1, the Court invalidated an FDA regulation requiring color photographs and text warnings on each pack of cigarettes sold in the U.S. The regulations were issued at the direction of Congress, which, in the Family Smoking Prevention and Tobacco Control Act of 2009, directed the agency to “require color graphics depicting the negative health consequences of smoking” to accompany text warnings such as TOBACCO SMOKING CAN HARM YOUR CHILDREN and SMOKING IS ADDICTIVE. The FDA complied, promulgating a series of images that companies must display prominently on each pack.