Graphic Cigarette Warning Labels, the First Amendment, and Public Right to Accurate Public Health Information:...

The 2009 Family Smoking Prevention and Tobacco Control Act required the US Food and Drug Administration (FDA) to issue a rule requiring graphic warning labels depicting the health consequences of smoking for prominent placement on cigarette packages and advertising. The tobacco industry filed a lawsuit against the FDA claiming that the required graphic labels constituted compelled speech in violation of First Amendment speech rights, and courts ruled for the tobacco industry. Subsequently, the FDA thoroughly redesigned the graphic labels and issued a revised rule, but the tobacco industry immediately filed a similar lawsuit against the FDA again on First Amendment grounds.

This article examines the delicate balance between First Amendment speech rights vs the right of the public to receive truthful, accurate, and understandable public health information. The article argues that the newly designed warning labels should easily pass First Amendment analysis. The need for new warning labels on tobacco products and advertising is a critical public health intervention to promote greater public understanding of the negative consequences of cigarette smoking, especially among the young.

The legal analysis in this article marshals arguments that the First Amendment does not prohibit the requirement of the new tobacco warning labels. Commercial speech receives First Amendment protection primarily for the benefit of the public (listeners) and not the tobacco industry (compelled speakers). The balance favors the right of the public to receive accurate information about critical health risks.