SMOKE GETS IN THEIR EYES –
Jan. 9, 2023 – The First Amendment to the U.S. Constitution protects the freedom of speech. This freedom includes the ability to speak and the right to not speak at all. The U.S. Supreme Court has also held that speech includes commercial speech, which is advertising. That is because advertising is how manufacturers and retailers “speak” to customers about the products that they sell. A government regulation requiring private companies to print and display anti-smoking graphic health warnings on product packages and in product advertisements has a direct impact on commercial speech and must meet constitutional standards.
To be constitutional, government mandated statements such as cigarette health warnings need to be accurate, non-controversial and factual. Moreover, the government statements must be narrowly drafted so as not to be more extensive than necessary.
Second Graphic Cigarette Health Warnings
On March 18, 2020, the FDA finalized a second rule with a new set of 11 graphic cigarette health warnings. Then, in April and May of 2020, two lawsuits were filed seeking to overturn this second set of graphic cigarette health warnings. One lawsuit was filed against the FDA by R.J. Reynolds Tobacco Co., Santa Fe Natural Tobacco Co., ITG Brands LLC, Liggett Group LLC and several other companies. The second lawsuit was filed by Philip Morris USA Inc. and Sherman Group Holdings LLC.