Government May Be Violating Tobacco Companies’ 1st Amendment Rights

by Walter Brasch

            A controversial Supreme Court decision less than two years ago could have the unintended consequence of significantly reducing the government’s 46-year campaign against cigarettes.

In a 5–4 decision, largely along political lines, the Supreme Court ruled in Citizens United v. Federal Elections Commission (October 2009) that not only were parts of the Bipartisan Campaign Reform Act of 2002 (also known as the McCain–Feingold Campaign Reform Act) unconstitutional, but that corporations and political action committees enjoyed the same First Amendment rights as private citizens.

            The government’s anti-smoking campaigns, most of them the result of a combination of executive department and Congressional action, essentially have three major parts: anti-tobacco advertising and public service messages, warning labels on cigarette packs, and the outright ban on several forms of tobacco company advertising.

Government Advertising

            Because the First Amendment applies only to governmental intrusion upon free expression, when the government creates advertising (whether TV ads or pamphlets), there can be no significant First Amendment issues. There may be some recourse, however small, in suits against use of taxpayer funds for political purposes, similar to the government’s role during the George W. Bush administration in forcing anti-abortion education upon women and health clinics.

Labels

            The anti-smoking campaign had begun with the 1964 Surgeon General’s report that there was a strong correlation between smoking, lung cancer, and chronic bronchitis.. The following year, Congress passed the Cigarette Labeling and Advertising Act that required every cigarette pack to have a health warning: “Caution: Cigarette Smoking May be Hazardous to Your Health.” The Public Health Cigarette Smoking Act of 1969,  taking effect two years later, strengthened the wording on cigarette labels to: “Warning: The Surgeon General Has Determined that Cigarette Smoking is Dangerous to Your Health.”

            However, the labels had minimal effect on reducing smoking. In 1984, unwilling to face political consequences from an outright ban, such as it enacted against any form of marijuana, Congress passed the Comprehensive Smoking Education Act that required even stronger messages on each pack.

Last week, the Food and Drug Administration, acting within authority of the Family Smoking Prevention and Tobacco Control Act of 2010, ordered all cigarette manufacturers to include nine new designs on a rotating basis on all cigarette packs. The designs take up the top half, both front and back, of every pack. Several of the messages are medically-supported statements that tell users that cigarette smoking causes cancer. One of the graphics is a pair of cancerous lungs next to a pair of non-cancerous lungs. Another label shows a set of rotted teeth. Another shows smoke coming from a tracheotomy hole.

The FDA also requires that government-approved messages appear on one-fifth of every print ad.

            Based upon interpretation of the Citizens United case, it would not be an unreasonable stretch to argue that the newly-required messages, with graphics and text, place an undue burden on a corporation’s rights of free speech by restricting their own message to less than half. Another argument could be made that by forcing the tobacco companies to accept pre-determined text and graphics is de facto government intrusion upon the rights of free expression.

Tobacco Company Advertising

            The largest concern for First Amendment consideration is in the area of the federal government imposing restrictions upon advertising and information messages.

            In 1967, the Federal Communications Commission, citing the Fairness Doctrine, required radio and TV stations that aired paid ads from tobacco companies to run anti-smoking ads at no cost. Unwilling to give up five to ten minutes a day to unpaid advertising, the stations began “voluntarily” dropping cigarette advertising.

            The Public Health Cigarette Smoking Act, which had changed the text of warning labels, also banned cigarette advertising on radio and television. In a concession to the tobacco companies, Congress permitted the law to take effect on Jan. 2, the day after the televised football bowl games. The effect of the law was a loss to radio and television stations of about $200 million a year in cigarette advertising, and a significant increase in advertising in newspapers, magazines, and billboards—and not much reduction in smoking.

A 1991 study in the Journal of the American Medical Association concluded that the cartoon character Joe Camel, advertising mascot for Camel cigarettes, was recognized by 3- to 6-year-olds almost as much as they recognized Mickey Mouse and Fred Flintstone. The AMA charged that R.J. Reynolds, manufacturers of Camel cigarettes, had targeted children; the company denied the charges, but eventually settled the lawsuit for $10 million, the funds to go to anti-smoking campaigns.

            In 1998, the Tobacco Master Settlement Agreement was the result of years of litigation and negotiation between the four largest tobacco companies, which controlled about 97 percent of all domestic sales, and 46 state attorneys general; four states had already settled. That agreement exempted the companies from class-action tort liability by citizens filing against the companies for health effects from smoking. The federal government also agreed to provide subsidies to tobacco farmers to cover losses based upon reduction of demand for their product. In exchange, the tobacco companies agree to provide $365.5 billion, with most of the funds going to the states for anti-smoking campaigns, and to allow FDA regulation. Among other provisions, the tobacco companies agreed to cut back advertising and sponsorship of activities, especially those that targeted youth. Because this was a civil case settlement, First Amendment concerns were rendered moot.

            However, the Family Smoking Prevention and Tobacco Control Act of 2010 is a government-imposed control that brings to question distinct First Amendment concerns. That Act bans tobacco companies from sponsoring all sports and cultural events, which could loosely be interpreted as a violation of the right of association, not specifically mentioned in wording in the First Amendment but extended by the Supreme Court decisions involving First Amendment guarantees. The Act further bans tobacco companies from displaying all tobacco-related images, including their logos, on any apparel, and also requires most advertising to be black lettering on a white background. Both actions are probable First Amendment violations.

A critical side issue melds labels with the media. It would be nearly impossible for any medium to show anyone with a cigarette pack, whether in news or entertainment, without also showing the government’s message. Any attempt by the government to regulate what appears on screen or in print would violate the First Amendment.

            Without the Citizens United decision, the government’s rights to regulate corporate advertising would probably not have significant basis for challenge. With that decision, tobacco corporate entities suddenly have a case.

[This column is meant to be a general overview and not a definitive analysis or detailed case study of possible First Amendment violations of government-imposed sanctions against tobacco companies.]