Why the ANA Is Fighting the FDA's Proposed Labeling Rules for Tobacco

The Government Can't Force Companies Selling Legal Products to Demonize Them, Group Argues

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Dan Jaffe
Dan Jaffe
Can the government force companies selling legal products to place a series of gruesome pictures on their product labels and in their advertising? The Food and Drug Administration now proposes to impose exactly this type of regulatory regime. The FDA, in a wide-ranging rulemaking move, has launched an effort to require all tobacco companies to place a series of disturbing graphic warnings on 50% of every tobacco pack or carton and to cover 20% of every advertisement with intentionally shocking visual images.

No one questions, and the courts have upheld, the right of the government to require the placement of neutral factual disclosures on labels. The proposed graphic warnings, however, are anything but neutral. They would force tobacco companies to expend vast amounts of resources to dramatically stigmatize their own products.

Among the graphic warnings proposed, for example, are pictures of a person exhaling smoke through a hole in his throat, a cadaver on an autopsy table with a toe tag and a lung full of cigarette butts. It is hard to conceive what messages the government could not require if compelling these types of graphic images were allowed.

If this FDA proposal is adopted and enforced, it will create sweeping and dangerous precedents for broad sectors of the advertising community. Despite the many claims that tobacco products are "unique," the Supreme Court has made clear in various cases that there is no vice exception to the First Amendment, that pictures and illustrations have as broad protection as words, and that companies cannot be forced to become mobile billboards for the government's messages. In virtually every instance in which advertising censorship has been proposed, it has been based on a claim that the category involved was somehow special and would not create precedents. Nevertheless, we have seen that the attacks on other categories in the past few years -- from alcoholic beverages to food advertising to prescription drugs -- demonstrates that the regulatory slippery slope is all too real in Washington. It is implausible that these FDA proposals will be applied solely in the tobacco arena.

Recently the Supreme Court, in the Thompson v. Western States Medical Center case, strongly affirmed that "if the First Amendment means anything, then regulation of speech must be a last -- not first -- resort." Unfortunately, this admonition once again is being ignored.

The government has multiple legitimate avenues to combat tobacco use without raising First Amendment issues: Federal, state and local governmental entities can finally get serious about enforcing the laws against sales of tobacco products to underage customers. They can increase the enforcement of smoke-free environments. They also are free to disseminate widely strong antitobacco messages on their own.

What the government cannot do, and what we will continue to oppose strongly, is force companies selling legal products to demonize them. Nor can the government force companies into becoming blaring megaphones projecting whatever messages, however well-meaning, the government wishes to impose.

ABOUT THE AUTHOR
Dan Jaffe is exec VP-government relations for the Association of National Advertisers.