Lawyers for major tobacco companies said Monday they do not want the full U.S. Court of Appeals for the D.C. Circuit to touch a panel's ruling that went against the government's controversial graphic warning labels requirement.
A divided three-judge panel of the D.C. Circuit in August ruled against the U.S. Food and Drug Administration's requirement that cigarette packs carry graphic images that depict the dangers of smoking. Judge Janice Rogers Brown called the images "inflammatory" and said they were "unabashed attempts to evoke emotion." The court said the proposed warning images violate the First Amendment.
The U.S. Justice Department wants the full D.C. Circuit to overturn the panel decision. Yesterday, responding to DOJ, lawyers for tobacco companies that include R.J. Reynolds and Lorillard urged the D.C. Circuit not to tangle with the panel decision. Ultimately, the U.S. Supreme Court could be asked for its assessment.
"The proposed warnings will not create more informed consumers and were never intended to," Jones Day litigation partner Noel Francisco, lead counsel for R.J. Reynolds Tobacco Co., said in a court filing Monday. Francisco also said the images "had no measurable effect on consumer knowledge of the smoking risks the warnings address."
DOJ lawyers said in their request that the panel decision failed to recognize the government's interest in "ensuring that consumers and potential consumers understand the health risks of smoking."
The tobacco company lawyers, who also include a team from Covington & Burling who represent Lorillard, said in their response that the FDA's graphic images rule was not meant to further that government interest.
"These warnings do not address any information deficit about the health risks of smoking. Rather, consumers are already aware of the health risks addressed by the warnings," the tobacco company lawyers said in their papers.
The warning images, Francisco said in court papers, "were not selected based on their ability to increase consumer knowledge. Instead, they were intentionally crafted to attach 'negative affect' to cigarettes and convey a message to consumers that smoking is not a legitimate or acceptable personal choice."
The U.S. Court of Appeals for the Sixth Circuit rejected a challenge to the requirements, DOJ lawyers said in their petition in the D.C. Circuit.
DOJ lawyers, including Mark Stern from the Civil Division's appellate staff, said in court papers that the panel decision "boldly declared" that the First Amendment blocks the graphic image regulations because the government failed to show how the photos have directly caused a decrease in smoking rates.
"The government’s interest in effectively communicating the health risks of smoking cannot be overstated," DOJ lawyers said in the request for a full-court review.
That a particular image evokes emotion, DOJ said, doesn't make a health warning inaccurate. "The warning that tobacco smoke can harm a smoker’s children evokes emotion because the warning is true, and people do not want to harm their children," DOJ said.
The full D.C. Circuit hasn't decided whether it will hear the case. If the government loses, DOJ could decide to ask the Supreme Court to review the dispute.
DF Lickiss may be right that government-compelled speech should only be upheld in extraordinary cases. But strict scrutiny analysis is not the answer here because it is not relevant to the risks at stake on either side. (Plus, it might backfire, by granting the government new powers to require citizens and businesses to make all kinds of patriotic or alarmist speech, whenever it invokes compelling interests like "national security" or public safety.)
Rather, a better approach would be to apply the "death is different" analysis used in capital cases. Here, tobacco is different because it is the only consumer product that is legally permitted to kill millions of its own customers - and to do so at enormous expense to the Government, as well as to society at large.
I want Government-compelled speech as rarely as possible. But if courts find that tobacco really is that different, then requiring notices this alarming should be found constitutional.
Posted by: Avon | October 31, 2012 at 02:25 PM
Government compelled speech should be allowed only if it can survive strict scrutiny. To adopt a lower standard is to give political opponents the ability to compel speech (your opponents will eventually win the WH and majority in Congress - doesn't matter what side you're on the pendulum always swings).
Posted by: DF Lickiss | October 31, 2012 at 01:34 AM
So the tobacco company lawyers say "These warnings do not address any information deficit about the health risks of smoking. Rather, consumers are already aware of the health risks addressed by the warnings."
Isn't this the same argument they've made in civil cases going back to the 60s, while at the same time they used a captive "research" group (CTR) to promote the notion that cigarette smoking did not increase the risk of cancer?
Posted by: Jwcraig1959 | October 30, 2012 at 04:25 PM