In 2009, President Obama signed into law the Family Smoking Prevention and Tobacco Control Act. In an effort to prevent cancer, the law would have required that tobacco companies place graphic color advertisements on cigarette packages that would cover the top 50% of the front and back of the package and 20 percent of print advertisements.
Reynolds American, along with other firms, sued the Food and Drug Administration, claiming the mandates for cigarette packages, cartons and advertising violate their First Amendment right to free speech. On February 9, 2012, federal Judge Richard Leon ruled that forcing such images on cigarette packages was a violation of freedom of speech. Judge Leon explained in his 19 page decision that: “unfortunately, because Congress did not consider the First Amendment implications of this legislation, it did not concern itself with how the regulations could be narrowly tailored to avoid unintentionally compelling commercial speech.”
Floyd Abrams, a New York attorney for the plaintiffs and prominent First Amendment Scholar, stated that: “The government, as the court said, is free to speak for itself, but it may not, except in the rarest circumstance, require others to mouth its position.” The plaintiffs further argued that while the federal government can require cigarette companies to provide purely factual information, the federal government may not, “use their private property as a ‘mobile billboard’ for the State’s ideological message.”
Christopher W. Hansen of the Cancer Action Network, disagreed, stating that: “today’s ruling ignores the overwhelming, decades-long need for strong cigarette warning labels and allows Big Tobacco to proceed ‘business as usual,’ continuing to promote its highly addictive and deadly products.”
Since 1984, federal law requires that cigarette packages carry one of four text warnings; those messages include “Cigarette Smoke Contains Carbon Monoxide” and “Smoking Causes Lung Cancer, Heart Disease, Emphysema and May Complicate Pregnancy.”
The Family Smoking Prevention and Tobacco Control Act explains the parameters of the new warnings as follows: “to prohibit any person from manufacturing, packaging, selling, offering to sell, distributing, or importing for sale or distribution within the United States any cigarettes the packages of which fail to bear specified warning labels.” The labels in question would have included color images required under the Food and Drug Administration which included: a man smoking through a tracheotomy hole in his throat, smoke wafting from a child being kissed by her mother, a diseased mouth presumably from oral cancer linked to chewing tobacco and a woman weeping uncontrollably.
The new warnings, which would have gone into effect on September 22, 2012, would have also required that the packages refer the buyer to the hotline of the National Network of Tobacco Cessation Quitlines (1-800-QUIT-NOW). While the Free Speech issue was the only issue in the current case, the Family Smoking Prevention and Tobacco Control Act also regulates the amount of nicotine and other substances in tobacco, and limits promotion of the products and related promotional merchandise at public events like sporting contests.