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.]

Questions Remain in Government's Anti-Cigarette Campaign

by Walter Brasch

            The federal government has launched what may become one of the most effective propaganda campaigns in American history.

            Beginning September 2012, every cigarette manufacturer must display one of nine government-approved graphics on the top half, both front and back, of every cigarette pack. Among the warnings is a picture of a pair of healthy lungs next to a pair of cancerous lungs, with the notice: "Cigarettes cause fatal lung disease." Another warning is equally definitive: "Cigarettes cause cancer," with a picture of rotting gums and teeth. A person with an oxygen mask is the graphic for the text, "Cigarettes cause strokes and heart disease." Other pictures show smoke coming from a tracheotomy hole and a dead body with autopsy stitches on his chest. Other warnings, with appropriate graphics are: "Smoking during pregnancy can harm your baby," "Tobacco smoke can harm your children," and "Tobacco smoke causes fatal lung disease in non-smokers." One graphic shows a man in a T-shirt with the message, "I quit." Cigarette manufacturers must include all nine warnings in rotation on their packs.

            In addition, the Food and Drug Administration (FDA) also requires that one-fifth of every print ad must include the warnings.

            The FDA directive is based upon Congressional action in 2009. The Family Smoking Prevention and Tobacco Control Act, which received strong bipartisan support, also prohibited cigarette manufacturers from sponsoring sports and cultural events. It further restricted tobacco companies from advertising their products on T-shirts and other clothing items.

            The first cigarette ad was in the New York National Daily in May 1789. By the Civil War, cigarette ads were appearing regularly in newspapers. The tobacco industry's own propaganda machine significantly increased full-page full-color ads in magazines during the 1930s and 1940s; a decade later, the industry was one of the first to recognize the influence of the emerging television medium. The ads not only extolled the advantages of smoking, they linked dozens of celebrities to their campaigns. Bob Hope pushed Chesterfields; Ronald Reagan wanted Americans to give Chesterfields as a Christmas gift. One popular ad even had Santa Claus enjoying a Lucky Strike. Marlboros became hugely successful with its Marlboro Man commercials that featured rugged cowboy individualism. To get the largely untapped female demographic into its sales net, cigarette companies went with what is now seen as sexist advertising. Lucky Strike wanted women to smoke its cigarettes "to keep a slender figure." Misty cigarettes emphasized its smoke, like its women, was "slim and sassy."  

Camel cigarettes, which would eventually develop Joe Camel as its cartoon spokesman to counter the Marlboro Man, tied health, opinion leaders, and tobacco smoke. Its survey of more than 100,000 physicians of every specialty said Camels was their preferred brand.

            However, by the mid-1960s, physicians had begun backing away not just from Camels but all cigarettes. A Surgeon's General's report in 1964 concluded there was a strong correlation between smoking and lung cancer. The following year, the Surgeon General required tobacco manufacturers to put onto every cigarette pack a warning, "Cigarettes may be hazardous to your health."

 In 1967, the Federal Communications Commission (FCC) ruled that the Fairness Doctrine required TV and radio stations to run anti-smoking ads at no cost. The message was clear to the financial departments—voluntarily eliminate cigarette advertising or lose five to ten minutes of sales time every broadcast day. In 1971, the FCC banned all cigarette advertising on radio and TV.

            By 2003, cigarette advertising peaked at $15 billion, according to the Federal Trade Commission (FTC) To counter cigarette company advertising campaigns, government steadily raised cigarette taxes. State and local taxes accounted for $16.6 billion in 2008, according to the Urban Institute and Brookings Institution. Federal taxes, raised to $1.01 a pack in 2009, brought in about $8.5 billion. New York City residents pay the highest taxes per pack--$1.50 city tax, $4.35 state tax, $1.01 federal tax. The average combined tax nationwide is $5.51. Pennsylvanians pay $1.60 state and $1.101 federal taxes. Much of the money is used to develop anti-smoking campaigns. 

            About 443,000 deaths each year are primarily from the effects of cigarette smoke, according to the Centers for Disease Control and Prevention. The new campaign aims to cut that by half. The FDA estimates there are about 46 million smokers.

            It's obvious that both tobacco manufacturer and government advertising campaigns have been effective. But there are several  questions that need to be asked.

If the federal government demands health warnings on cigarette packs, why doesn't it also demand similar warnings on other products that also carry known health risks, like liquor?

If there is so much evidence that cigarette smoke—with its tar, nicotine, and associated chemicals—poses such a high health risk, why doesn't the federal government ban it, like it does numerous products known to be unsafe?

            Does the federal government's campaign violate the First Amendment protections of freedom of speech? This becomes an even more important question since the Supreme Court ruled in 2010 that with few exceptions corporations enjoy the same rights as individual citizens.

            If there is evidence that tobacco smoke is unsafe and unhealthy, and the government levies excessive taxes, why did the federal government grant $194.4 million in agriculture subsidies in 2010 and about $1.1 billion in subsidies since 2000?

            Finally, if the evidence is overwhelming that cigarette smoke is dangerous, and the federal government taxes every pack but doesn't ban cigarettes, why has it been so adamant in refusing to decriminalize marijuana, which has significantly fewer health risks than what is in the average cigarette?

[Assisting was Rosemary Brasch. Dr. Brasch has never smoked, but respects the rights of those who do. His latest book is Before the First Snow: Stories from the Revolution, a literary journalism novel about the counterculture.]