Consumer Class Actions and Mass Torts

February 29, 2012 will go down as a red-letter day in First Amendment history.  It was the day that U.S. District Judge Richard J. Leon struck down regulations in which the federal government tried to force product manufacturers to publish the government's opinions about their products.  See R.J. Reynolds Tobacco Co. v. United States Food and Drug Administration, Civ. Case No. 11-1482 (RJL) (D.D.C. Feb. 29, 2012).

Last November, Judge Leon had granted a preliminary injunction against the regulations.  R.J. Reynolds Tobacco Co. v. FDA, 2011 WL 5307391 (D.D.C. Nov. 7, 2011).  Subsequently both sides had moved for summary judgment.  Yesterday, Judge Leon granted summary judgment for the tobacco industry and denied the government's summary judgment motion.

In response to Congress's mandate in the Family Smoking Prevention and Tobacco Control Act of 2009, the FDA issued a final rule requiring certain "warnings" on cigarette packs.  These "warnings" included 9 textual warnings, and ten graphic images.  The graphic images include:  a man blowing smoke through his tracheotomy hole, a cloud of smoke enveloping a baby being kissed by his mother, a pair of diseased lungs next to healthy lungs, a mouth with lesions, a man with an oxygen mask, a post-autopsy cadaver with chest staples, a weeping woman, a man wearing a t-shirt with the no-smoking symbol and the words "I QUIT," and a cartoon baby in an incubator.  Each graphic displays "1-800-QUIT-NOW."  These graphics are to take up 50% of the front and back panels of cigarette packages, and 20% of all printed advertising.

In publishing the final rule, FDA acknowledged that the graphic "warnings" are estimated to reduce smoking rates by 0.088%.  Slip op. at n.7.  Yes, that 88 thousandths of a percent.  And that's the estimate of the anti-smoking zealots who are imposing the new rule.  FDA conceded that such a reduction is "in general not statistically distinguishable from zero."  Slip op. at 5-6.

Let's be absolutely clear about what the government was trying to do here.  It hijacked 50% of the manufacturers' packages (and 20% of their print advertising) to force the manufacturers -- against their will -- to convey messages explicitly designed by the government's experts to manipulate people's emotions into preventing them from buying the manufacturers' lawful products.  This was forced speech, plain and simple.  Somebody call the ACLU!

The First Amendment, of course, does not allow the government to put opinions in your mouth and force you to repeat them.  Such rules typically merit strict scrutiny.  There was a fight in this case over whether strict scrutiny should apply.  The government argued that it shouldn't because it was "commercial speech" that deserved less constitutional protection, and purportedly involved merely government-mandated informational disclosures designed to prevent consumer confusion or deception.  See Zauderer v. Office of Disciplinary Counsel of Sup. Ct. of Ohio, 471 U.S. 626, 651 (1985). 

Horsefeathers!  These graphic images are not "purely factual" or "uncontroversial disclosures."  As the court recognized, "the graphic images here were neither designed to protect the consumer from confusion or deception, nor to increase consumer awareness of smoking risks; rather, they were crafted to evoke a strong emotional response calculated to provoke the viewer to quit or never start smoking."  Slip op. at 11.  Indeed, the court cited the Institute of Medicine report, which clearly stated:

It is time to state unequivocally that the primary objective of tobacco regulation is not to promote informed choice but rather to discourage consumption of tobacco products, especially by children and youths, as a means of reducing tobacco-related death and disease.

Slip op. at 11.  Because the FDA's mandated "warnings" were not factual statements designed to inform or educate, but instead were opinions that smoking is bad and people should quit smoking, the regulations were subject to strict scrutiny.

To withstand strict scrutiny, a regulation must be narrowly tailored to achieve a compelling government interest.

Judge Leon concluded that the government had not introduced proof of a compelling government interest:  "Although an interest in informing or educating the public about the dangers of smoking might be compelling, an interest in simply advocating that the public not purchase a legal product is not."  Slip op. at 16.  Indeed, the court even noted that a study showed people already know and overestimate the health risks of smoking, which is why the use of even the graphic images proposed by the FDA was not going to appreciably change actual behavior.  Id. at n.15.

Moreover, Judge Leon held that the restrictions were far from narrowly tailored.  Notably, the court said, "there is no evidence that Congress even considered the First Amendment implications when drafting the Act."  Slip op. at 17.  And there were plenty of less speech-restrictive and burdensome alternatives than hijacking 50% of the manufacturers' packaging to achieve any legitimate government objective.  For example, "the Government could disseminate its anti-smoking message itself" through a media campaign.   It could have changed the display requirements to be less burdensome, such as reducing the "warnings" to 20% of only the front or the back of the package.  It also could have selected graphics that conveyed only factual information, rather than playing on viewers' emotions.  And it could improve law enforcement efforts to prevent unlawful sales to minors.  As the court observed, "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."  Slip op. at 19.

Villanizing tobacco companies is in vogue these days.  But their products are lawful and are enjoyed by millions of Americans.  Judge Leon understood that if the government is allowed to force these product manufacturers, however unpopular, to trumpet government opinions critical of their products, then before long it will do the same thing with other lawful products, like medicines or mobile phones.  Government is a behemoth that already has in its arsenal many, many ways to make its opinions known and discourage the use of products that it opposes.  It should not be allowed to conscript into its service manufacturers of lawful products and dictate that they speak against their own products.  Thankfully, the First Amendment requires much more before the government can compel speech from its citizens.