DEPICTING THE GRAPHIC TRUTH: THE
HEATED CONTROVERSY OVER CIGARETTE
WARNING LABELS AND THE BOUNDARIES OF
FIRST AMENDMENT PROTECTION
Brian Fedele*
INTRODUCTION
..............................................
457
I. OVERVIEW OF THE FAMILY SMOKING PREVENTION AND
11:
III:
TOBACCO CONTROL ACT...........................
THE ABILITY OF IMAGES TO CONVEY INFORMATION ...
THE HISTORY OF COMMERCIAL SPEECH PROTECTION
AND THE CONFLICTING OUTCOMES OF Rj REYNOLDS
AND DIscouNT TOBACCO CiTY ...
...............
A.
B.
C.
D.
E.
The History and Evolution of Commercial Speech
Protection
...............................
The Plaintiffi' Challenge in Commonwealth Brands
and Discount Tobacco City ..................
Opinion of the Sixth Circuit in Discount Tobacco
City
...................................
The Plaintiffi' Challenge in R.J Reynolds .........
The Opinion of the D. C Circuit in R.J Reynolds ...
IV. THE CONSTITUTIONALITY OF THE GRAPHIC IMAGES...
CONCLUSION.
............................................
460
464
468
468
474
476
477
479
482
489
INTRODUCTION
The days where one could find Fred and Wilma Flintstone on television enjoying Winston cigarettes,' or view print advertisements depicting John Wayne smoking Camel cigarettes are long gone.2 Since the
release of the First Report of the Surgeon General's Advisory Committee
* Candidate for J.D., 2014, Benjamin N. Cardozo School of Law; B.A., 2009, Hofstra
University. I would like to express my gratitude to Professor Kerin Coughlin for her guidance
during the writing of this Note; and my family, for their love and support throughout my life,
and law school experience.
1 Winstons with the Flintstones, YouTUBE, http://www.youtube.com/watch?v=mZvHiiWF
bBU (last visited Feb. 4, 2013).
2 Jack Doyle, Wayne for Camels, THE Pop HISTORY DIG, http://www.pophistorydig.com/?
tag=celebrity-cigarette-advertising (last updated April 10, 2010).
457
458
CARDOZO PUB. LAW POLICY & ETHICSJ.
[Vol. 12:457
on Smoking and Health 3 in 1964, Congress has taken measures to inform the public of the health risks of smoking, and limit the influence
of cigarette advertisements on the nation's youth. In 2009, Congress
took another step to achieve these goals by passing the Family Smoking
Prevention and Tobacco Control Act (hereinafter "Tobacco Control
Act").' In particular, the statute mandates that the U.S. Food and Drug
Administration implement nine new health warning labels with a textual and visual component.6 Each textual warning would be accompanied by a graphic image depicting the health risks of smoking.7 The
new labels would replace the current Surgeon General warning labels,
which only have a textual warning.'
Cigarette manufacturers and distributors did not take the passage
of this provision lightly. The tobacco industry challenged its enforcement 9 on the grounds that it unduly burdened their right to commercial
3 HISTORY OF THE SURGEON GENERAL'S REPORTS ON SMOKING AND HEALTH, CENTERS
FOR DISEASE CONTROL AND PREVENTION,
http://www.cdc.gov/tobacco/data-statistics/sgr/histo
ry/index.htm (Jul. 06, 2009). The First Report concluded that cigarette smoking is linked to
lung cancer, laryngeal cancer, and chronic bronchitis. Id.
4 Such legislation includes the Federal Cigarette Labeling and Advertisement Act of 1965,
the Public Health Cigarette Smoking Act of 1969, the Comprehensive Smoking Education Act
of 1984, and the Comprehensive Smokeless Tobacco Health Education Act of 1986. See Smoking & Tobacco Use, Legislation, CENTERS FOR DISEASE CONTROL AND PREVENTION, http://www
.cdc.gov/tobacco/data.statistics/bytopic/policy/legislation/index.htm (last updated Nov. 15,
2012).
5 Family Smoking Prevention and Tobacco Control Act, Pub. L. No. 111-31, 123 Stat
1776 (2009).
6 The nine warning messages are as follows: WARNING: Cigarettes are addictive.; WARNING: Tobacco smoke can harm your children.; WARNING: Cigarettes cause fatal lung disease.;
WARNING: Cigarettes cause cancer.; WARNING: Cigarettes cause strokes and heart disease.;
WARNING: Smoking during pregnancy can harm your baby.; WARNING: Smoking can kill
you.; WARNING: Tobacco smoke causes fatal lung disease in nonsmokers.; WARNING: Quitting smoking now greatly reduces serious risks to your health. CENTER FOR TOBACCO PRODucTs FOOD AND DRUG ADMINISTRATION, EXPERIMENTAL STUDY OF GRAPHIC CIGARETTE
WARNING LABELS: FINAL RESULTS REPORT
1-2 (2010).
7 To view the images, see U.S. Food and Drug Administration, CigaretteHealth Warnings,
FDA.Gov, http://www.fda.gov/TobaccoProducts/Labeling/Labeling/CigaretteWarningLabels/de
fault.htm (last updated Aug. 22. 2012).
8 To view the Surgeon General warning labels see Smoking and Tobacco Use, Highlights:
WarningLabels, CENTERS FOR DISEASE CONTROL AND PREVENTION, http://www.cdc.gov/tobac
co/datastatistics/sgr/2000/highlights/labels/index.htm (last updated Aug. 9, 2000).
9 R.J. Reynolds Tobacco Co. v. U.S. Food & Drug Admin., 696 F.3d 1205 (D.C. Cit.
2012); Disc. Tobacco City & Lottery, Inc. v. U.S., 674 F.3d 509 (6th Cit. 2012).
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DEPICTING THE GRAPHIC TRUTH
459
speech,"o which is protected under the First Amendment." When the
question came before the Sixth Circuit Court of Appeals in Discount
Tobacco City & Lottery, Inc v. United States, 1 2 the court found that the
use of such labels was not a violation of the industry's First Amendment
right. During a subsequent challenge before the D.C. Circuit Court of
Appeals in R.J Reynolds Tobacco Co. v. Food & Drug Administration,'3
the court struck down the implementation of labels selected by the
FDA, on the grounds that they did not serve the purpose of informing
the consumer, but rather attempted to turn cigarette boxes into billboards for a national anti-smoking campaign.
The failure of previous efforts by Congress to eliminate the
proliferation of cigarette consumption calls for the implementation of
the mandated warning labels. The advantages that come with warning
labels that have both a textual and visual component would better serve
Congress's goals than purely textual labels. In assessing the constitutionality of such measures, the D.C. Circuit made several mistakes in its
analysis resulting in improperly striking down the provision. These
flaws are apparent in the court's methodology in assessing the way the
labels convey information, and in its application of the established precedent in the area of commercial speech protection. Had the court correctly applied commercial speech case law it would have found that the
Tobacco Control Act mandate for graphic warning labels is permissible
under the First Amendment.
Part I of this Note provides an overview of the Tobacco Control
Act. In particular, attention is placed on Title II, Section 201 of the
Tobacco Control Act, which mandates that cigarette boxes contain
warning labels that display graphic depictions of the harmful effects of
smoking. In addition, Part I will discuss the findings of several studies
pertaining to the governmental use of imagery in tobacco warning labels. Part II of this Note will provide insight into the persuasive power
10 Commercial Speech may be described as speech which does nothing more than propose a
commercial transaction. See Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer
Council, Inc., 425 U.S. 748, 762 (1976).
11 U.S. CONST. amend. I ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press;
or the right of the people peaceably to assemble, and to petition the Government for a redress of
grievances."). See discussion infra Part III.B, III.D. for a discussion on the challenges issued by
the tobacco industry.
12 R.j Reynolds, 696 F.3d. at 1205.
13
Disc. Tobacco City, 674 F.3d 509.
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CARDOZO PUB. LAW POLICY & ETHICS J
[Vol. 12:457
of visual imagery, and discuss how it can serve as a valuable tool to
convey information.
Part III will provide an overview of the evolution of commercial
speech protection under the First Amendment, and the framework by
which regulations of such speech are assessed. In addition, it will discuss
the legal challenges by members of the tobacco industry, and the decisions of the Sixth and D.C. Circuit Courts of Appeals. Part IV will
discuss the errors of the majority opinion of the D.C. Circuit Court in
reaching its conclusion. In addition, Part IV will discuss the constitutional permissibility of the use of warning labels, which contain graphic
images depicting the harmful effects of smoking.
I.
OVERVIEW OF THE FAMILY SMOKING PREVENTION AND
TOBACCO CONTROL ACT
On June 22, 2009, Congress enacted the Tobacco Control Act.' 4
The statute explicitly grants the Food and Drug Administration (hereinafter "FDA") the authority to regulate the manufacture, distribution,
and marketing of tobacco products in order to protect the public
health." The statute was passed in response to FDA v. Brown & Williamson Tobacco Corp., in which the Supreme Court found that the FDA
did not have such authority.16 The Tobacco Control Act also granted to
the FDA the power to oversee and regulate the registration and inspection of tobacco companies, and to set standards for tobacco products.17
The statute also requires that the tobacco industry disclose research
it has conducted on the health, behavior, and physiological effects of
smoking, along with research pertaining to the marketing of tobacco
products." It also mandates the presence of graphic and textual warnings on cigarette boxes that are the subject of this note. Specifically, it
requires "bigger, more prominent warning labels for cigarettes and
14
OVERVIEW
OF THE FAMILY SMOKING
PREVENTION AND TOBACCO
CONSUMER FACT SHEET, U.S. FOOD AND DRUG, ADMINISTRATION,
CONTROL ACT:
http://www.fda.gov/To
baccoProducts/GuidanceComplianceRegulatorylnformation/ucm246129.htm
Aug. 29, 2012).
15 Id.
(Last
updated
16 FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 155 (2000) ("Taken together, these actions by Congress over the past 35 years preclude an interpretation of the FDCA
that grants the FDA jurisdiction to regulate tobacco products.").
17 See id.
18 See id.
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DEPICTING THE GRAPHIC TRUTH
461
smokeless tobacco products."
In addition, it requires that cigarette
boxes display "color graphics depicting the negative health consequences
of smoking to accompany the label statements . . . so that both the
graphics and the accompanying label statements are clear, conspicuous,
legible, and appear within the specified area." 2 0 Out of thirty-six options, nine images were chosen by the FDA. Among them are depiction
of diseased lungs, a mouth with decaying teeth, and an image of a deceased man. 2 1 The statute requires that the labels occupy the top half of
the front and rear panels of cigarette packages and thirty percent of the
display panels for smokeless tobacco products. 2 2 These label requirements were supposed to come into effect in September 2012, but the
injunctive relief provided by the D.C. Circuit in R.J Reynolds Tobacco
Co. v. Food r DrugAdministration prevented their implementation.2 3
Prior to passing the Tobacco Control Act, Congress made several
findings that called for the use of more intensive restrictions on the
advertisement and marketing of tobacco products, many of which concerned youth smokers. Congress found that tobacco marketing and advertising targeted at youth audiences resulted in an increase in their
consumption of cigarettes.2 4 Even brief exposure to such advertising influenced adolescents' attitudes and intentions to smoke.2 5 The success
of this advertising is demonstrated by the fact that eighty percent of
young smokers consume "three heavily marketed brands," while only
fifty-four percent of adults who are twenty-six years old and older use
these same brands. 2 6 In addition, the overwhelming leading demographic likely to become future smokers are individuals under eighteen
years old.2 7 Significantly, Congress found that prior efforts, comprised
19
Id.
20 Family Smoking Prevention and Tobacco Control Act, Pub. L. No. 111-31, 123 Stat.
1776 (2009).
21 U.S. Food and Drug Administration, supra note 7. To view the images, see id.
22 Family Smoking Prevention and Tobacco Control Act, Pub. L. No. 111-31, 123 Stat
1776 (2009).
23 See R.J. Reynolds Tobacco Co. v. U.S. Food & Drug Admin., 696 F.3d 1205 (D.C. Cir.
2012); see also U.S. Food and Drug Administration, supra note 7.
24 Family Smoking Prevention and Tobacco Control Act, Pub. L. No. 111-31, 123 Stat
1776. In addition it was found that in 2005 alone, cigarette manufacturers spent more than $13
billion towards efforts to attract new customers, keep existing ones, increase consumption of
their products, and influence public opinion toward tobacco use. See id.
2 5 Id
26 Family Smoking Prevention and Tobacco Control Act, 123 Stat 1776.
27
Id
CARDOZO PUB. LAW POLICY &'ETHICS J
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[
[Vol.
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of "less restrictive and less comprehensive approaches have not been and
will not be effective in reducing" cigarette consumption.28
Congress' mode of action to combat the proliferation of smoking is
not original. The use of warning labels that include pictorial depictions
of smoking's long-term effects has been implemented in over thirty
countries, and has found success. 2 9 Studies on the effects of labels with
textual and visual elements in comparison to purely textual warnings
have found more positive results among labels with both components.
Such results include a greater emotional response among viewers, along
with an increased awareness and reflection on the health risks of smoking, an increase in motivation and attempts to quit, and a decrease in
smoking. 30 Many of these results are due to the pictorial depictions
being more noticeable and memorable than their purely textual
counterparts.3 1
A study conducted by the Centers for Disease Control compared
the impact of Canadian pictorial warnings to the current textual-only
warnings of the United States. The study found that the eleven focus
groups, comprised of American smoking and non-smoking participants,
believed the Canadian warnings were more informative and effective. 3 2
In addition, the use of graphical depictions caused viewers to have a
negative attitude towards viewing cigarette packaging as well. 3 3
The effectiveness of graphical images is due to their ability to better
induce the realization and fear towards the dangers of smoking.34 However, to attain this effect, the images must make the threat of harm to
one's health appear real and imminent.3 ' This fear can also be balanced
with a positive message; one that tells the consumer that these harmful
effects can be avoided by quitting smoking or by not starting at all.
The FDA commissioned a series of studies to determine which
images it should place on cigarette packages. They measured "consumer
attitudes, beliefs, perceptions, and intended behaviors related to ciga28
Id
TOBACCO FREE KIDS, TOBACCO WARNING LABELS: EVIDENCE OF EF1, 2 (2012).
30 Linda J. Demaine, Seeing Is Deceiving: The Tacit DeregulationofDeceptive Advertising, 54
Ariz. L. Rev. 719, 727 (2012).
31 Id
32 Jeremy Kees et al., UnderstandingHow GraphicPictorialWarnings Work on CigarettePackaging, 29 J. Pub. Pol'y & Mktg, 265, 268 (2010).
33 Id
34 Id
35 Id
29 CAMPAIGN FOR
FECTIVENESS,
2014]
DEPICTING THE GRAPHIC TRUTH
463
rette smoking in response to graphic warning labels." 36 In addition, the
FDA assessed the "efficacy of various graphic images associated with
each of the nine warning statementS37 specified in the Tobacco Control
Act for achieving each of the communication goals" and the effect the
labels would have on the viewer, relative to the demographic he belongs
to.3 The sought communicative goals were to convey information
about the health risks of smoking, to encourage cessation, and prevent
new smokers from picking up the habit. 39 The findings were broken
down into the following categories: emotional and cognitive reactions,
recall of the message, communication of health risks from smoking, and
the encouragement of smoking cessation and discouragement of youth
smoking.4 0
The study found that the most graphic labels evoked the strongest
emotional and cognitive reactions from the viewer." Most literature has
suggested that the images, which can evoke such reactions in a viewer
tended to be the most effective in increasing awareness. 4 2 During a follow up test, which would take place a week after initial exposure to the
images, for the majority of the images tested, seventy percent of their
audience was able to recall what message was associated with them.4 3
Some of the labels impacted the beliefs of the viewers resulting in a
stronger conviction that smoking has the potential to lead to health
risks.
The results were less definite in terms of measuring the likelihood
that the labels would result in intentions to quit and actual behavioral
36
Id.
37 The nine warning messages are as follows: WARNING: Cigarettes are addictive.; WARN-
ING: Tobacco smoke can harm your children.; WARNING: Cigarettes cause fatal lung disease.;
WARNING: Cigarettes cause cancer.; WARNING: Cigarettes cause strokes and heart disease.;
WARNING: Smoking during pregnancy can harm your baby.; WARNING: Smoking can kill
you.; WARNING: Tobacco smoke causes fatal lung disease in nonsmokers.; WARNING: Quitting smoking now greatly reduces serious risks to your health. See CENTER FOR TOBACCO
PRODUCTs FOOD AND DRUG ADMINISTRATION, supra note 6, at 1-2.
38
39
40
41
Id
Id. at 1-1.
See id.at 4-1-4-4
See id. at 4-2.
42 CENTER FOR TOBACCO
PRODucrs
FOOD AND DRUG ADMINISTRATION, supra note
6,
at
42.
43
Id. at 4-3.
44 Id. at 4-2. Among these images was "Hole in the throat," which depicts a man smoking
out of a tracheotomy hole. This image elicited stronger beliefs about the health risks smoking
among adult viewers than purely textual warnings. Id. at 3-2.
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CARDOZO PUB. LAW POLICY 6- ETHICS J
[Vol. 12:457
change. While some of the images positively invoked intentions among
adults to quit smoking, there was not enough evidence to definitively
conclude that this would manifest into a behavioral change, or prevent
youth viewers from smoking.45 Two explanations were proposed for
these evidentiary gaps. First, the observation period may have simply
been too brief to find definite results. 4 6 Second, the "dosage" of exposure to the labels might have been insufficient to have resulted in a
positive change.4 7
II: THE ABILITY
OF IMAGES TO CONVEY INFORMATION
The use of imagery can serve as a powerful tool to inform and
capture the attention of consumers who are considering purchasing cigarettes. Due to this, the tobacco industry's alarm towards the FDA is not
surprising. Depending on the type of image, the viewer's likelihood to
trust what they are perceiving is affected. Realistic images tend to be
trusted as credible representations of the reality they are trying to display, despite not having the ability to affect the other senses that we use
in everyday life.4 8 In some respect, they are viewed as objective records
of the world around us, affecting the way in which we review and evaluate them.
Upon perceiving an image, the viewer is likely to assume
the validity of what is being portrayed in the image, unless a certain
feature clearly provides reason to believe otherwise. 0
45 Id. at 4-3. Among the more effective images for this task was a photo depicting a deceased man with staples in his chest. CENTER FOR TOBACCO PRODUCTS FOOD AND DRUG
ADMINISTRATION, supra note 6, at 4-3.
46 Id. at 4-4.
47 Id. at 4-4.
48 Richard K. Sherwin et. al., Law in the DigitalAge: How Visual Communication Technologies Are Transformingthe Practice, Theory, and Teaching ofLaw, 12 B.U.J. ScI. & TECH. L. 227,
256 (2006).
49 Terry S. Kogan, PhotographicReproductions, Copyright and the Slavish Copy, 35 COLUM.
J.L. & ARTS 445, 469 (2012).
50 See Sherwin et. al., supra note 48, at 243-44; Demaine, supra note 30, at 735. If a
sequence of images are viewed in rapid succession through a medium such as television, or film
this effect is enhanced. Viewers are less inclined to apply critical thinking towards what they are
perceiving. Sherwin et. al., supra note 48, at 243-44. In addition the perspective in which an
image is presented also affects the manner in which the viewer interprets the image. Through
the use of linear perspective, the depiction has the quality of appearing truthful and natural.
Thus the fact that an image is in fact artificial becomes disguised behind this effect. Like with
images viewed in rapid succession, linear perspective disarms the viewer's critical thinking towards the artifice behind the images production. Christopher J. Buccafusco, Gaining/losing
Perspective on the Law, or Keeping Visual Evidence in Perspective, 58 U. MIAMI L. REv. 609, 64546 (2004).
2014]
DEPICTING THE GRAPHIC TRUTH
465
Photography creates this effect more than other forms of imagery,
since the viewer may have tendency to believe that there is a "special
connection between photographs and the objects they present."" This
is because they are presented in a fashion in which the artist is removed
from the work.52 In many instances the photographer is able to capture
a subject that not only exists, but also appears to be devoid of human
manipulation.' However, when looking at a painting or drawing, a
connection is made by the viewer that the work is based upon a mental
impression of the artist.
As seen by the results of the FDA study, images of an event or
scenario have the capacity to invoke the emotional and cognitive responses more so than a scenario that is described by the written or spoken word.'1 While the viewer may be aware of a connection between
the emotion that is being tapped by the depiction he may not have a
clear understanding as to what the connection is. In effect, the viewer is
less likely to assess the validity of the message behind the image." The
emotional power of visual aids is displayed by the effects advertisements
have on the decision-making process of consumers when deciding which
product to purchase. Positive emotions may be invoked by the association of the advertisement of the product and the feeling it produces. In
addition, consumers are more likely to purchase items, which give them
a positive feeling. As a result a consumer is more likely to purchase the
item in which they associate such feelings towards. This is the result of
effective advertisement. 6
The power of images over the human psyche is rooted in the manner in which the brain processes information. It not only requires less
effort to process information provided by visual imagery than language,
it is also capable of absorbing more information by viewing imagery
51
52
Kogan, supra note 49, at 468.
Sherwin et. al., supra note 48, at 256.
Kogan, supra note 49, at 468.
Sherwin et. al., supra note 48, at 242. For example an individual viewing a movie that
depicts sitting in the front row of a rollercoaster is able to invoke feelings of vertigo, while such
an effect would not take place by a verbal description of such an experience. Id.
55 Id. at 244-45.
53
54
56 See Demaine, supra note 30, at 737. In addition many journalists appreciate the power of
imagery especially when reporting about disturbing effects. While some journalists will limit
their reporting on such stories to a verbal description in order to not offend the senses of the
reading, others have found that in many instances that the story in which they are trying to
convey is not complete without a photo of the event. Id. at 738.
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[Vol. 12:457
rather than text.17 In addition, it is only capable of focusing on a single
subject at a time. While it may appear that we can place our attention
on multiple subjects simultaneously, in reality we are rapidly shifting
our focus between subjects when attempting to do so. 5 ' Due to this,
when viewing an advertisement, individuals are more likely to lock their
focus on the visual aspect of the medium, rather than the text which
accompanies it.5 9
The tobacco industry has been long aware of the power imagery
can have on the consumer. Over the years, cigarette manufacturers have
conveyed common themes in their advertisements, with the hope that
the consumer will associate their product with them. Such themes include "independence, adventuresomeness and risk taking, sophistication, glamour, sexual attractiveness, thinness, social approval . . .
rebelliousness, and being 'cool.'" 60 An example of this can be seen from
the U.S. Vantage campaign, which was primarily based upon the use of
photography. The advertisement depicted female athletes participating
in high action, non-team sports to give the impression that Vantage consumers live a "high energy life style."6 1 To add to that effect, the colors
were supersaturated, and the models all wore red in order to resemble
the color scheme of the cigarette pack.6 2 These common themes show
that the purpose behind the advertisement was to appeal to younger
consumers, namely adolescents, in attempting to recruit new smokers.
The advertisements of the cigarette industry were so effective that
they were able to negate the influence of purely textual surgeon general
warnings. One study found that while viewing a cigarette print advertisement, the average viewer allocated less than ten percent of the time
reading the textual warning, while spending the remaining duration
viewing the advertisement itself.6' Half of those viewers did not even
57
Id. at 733.
58
Id. at 732.
59 Id. at 733.
Richard A. Pollay, How CigaretteAdvertising Works: Rich Imagery and Poor Information,
B.C. 1, 31 (2002), http://www.smoke-free.cal
defacto/D057-Pollay-HowCigaretteAdvertisingWorks.pdf.
61 Id. at 27.
62 Id
63 Paul M. Fischer et al., Recall and Eye Tracking Study ofAdolescents Viewing Tobacco Advertisements, 261 JAMA 84 (1989).
60
HISTORY OF ADVERTISING ARCHIVES, UNIV. OF
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DEPICTING THE GRAPHIC TRUTH
467
bother to read the warning, and the mean duration for time spent viewing the warning was 0.23 seconds. 4
Despite such properties of images, they may be used in order to
impart information clearly to the viewer. It was initially proposed by
Ferdinand Saussure, 65 that a visual sign is a relationship between a signified and a signifier.6 6 A signifier is something, which the viewer can see,
touch, or feel, while a signified is the concept or idea which the signifier
is supposed to represent.67 Take for example an image of a skull and
cross bones; the image is the signifier, while the signified is the concept
that the contents, which are marked with the image are harmful. Thus
when viewing the image, the viewer is able to understand that the contents marked with them are not to be consumed.
Such studies have dived deeper, finding that there are two branches
of signifieds; denotative and connotative signifieds." A denotative signified is the obvious meaning of a sign.' 9 It is those messages which are so
obvious that they could be recognized by the viewer regardless of his
cultural background. 70 On the other extreme is a connotative signified
which is a concept that is being implicitly communicated from the image. Its interpretation will on part depend on the viewer's idiosyncratic
thought process and beliefs. In this respect, viewers may go beyond
what is being presented and draw their own inferences in ascertaining a
meaning from their intuition.7 1 However much of the meaning that
could be derived will be based on what their culture associates the image
with, such as the skull and cross bones example. 72 Importantly, visual
imagery is able to communicate complex ideas in a succinct fashion,
0.23 seconds is about the time it would take an average speed reader to read about one
third of words contained in the warning. Id.
65 Ferdinand Saussure is considered to be the father of modern linguistics. See Ferdinand
Saussure, BRITANNICA ACADEMIc EDITION, http://www.britannica.com/EBchecked/topic/5255
75/Ferdinand-de-Saussure (last visited March 1, 2013).
64
66 Robert B. Preston, A PictureIs Worth One Thousand Words. A Callfr the ABA to Expand
Rule 7.1 to ProscribeFalse or Misleading Images As Well As Statements, 31 J. LEGAL PROF. 153,
160 (2007).
68
Id
Id
69
Id.
70
Id
67
See Sherwin et. al., supra note 48, at 246.
Preston, supra note 66, at 160. The author gives the example of a picture of a red flower
with a thorny stem to illustrate this duality in connotation. The image denotes a rose, while
depending on the culture of the viewer, it also may signify "passion and romance." Id.
71
72
CARDOZO PUB. LAW POLICY r ETHICS J
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[Vol. 12:457
even though it would require a painstaking effort to present those same
ideas linguistically."
At this point, the Note will take a turn towards discussing the
evolution of the First Amendment's protection of commercial speech,
and the framework by which the courts analyze restrictions on that
speech. From there, the Note goes into much detail concerning the
challenges of the tobacco industry, and the conflicting opinions of the
Sixth Circuit Court of Appeals, and the D.C. Circuit Court of Appeals.
III:
THE HISTORY OF COMMERCIAL SPEECH PROTECTION AND
THE CONFLICTING OUTCOMES OF Rj REYNOLDS AND
DiscouNT ToBACCO CiTY
A.
The History and Evolution of Commercial Speech Protection
The First Amendment does not explicitly provide for the protection of commercial speech. The Supreme Court's recognition of such
protection is relatively new. It was initially recognized in Bigelow v. Virginia,74 where the Court rejected the notion that speech when presented
in the form of advertising is "stripped of all First Amendment protection."75 The Court prohibited the enforcement of a Virginia statute
that made it a misdemeanor to "encourage or prompt the processing of
an abortion" 7 through the sale or circulation of any publication.
Greater recognition for commercial speech protection was found in
Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council,
Inc.,7 which concerned a statutory ban on the advertisement of prices
for prescription drugs in Virginia. The ban was purportedly implemented to preserve the standards of professionalism of state pharmacists. 78 The question before the Court was whether "speech which does
'no more than propose a commercial transaction' is so removed from
any 'exposition of ideas' and from 'truth, science, morality, and arts in
general, in its diffusion of liberal sentiments on the administration of
Government,' 7 that its protection is unwarranted. The Court found
that there was not such a removal between commercial speech and these
73 Demaine, supra note 30, at 734.
74
Bigelow v. Virginia, 421 U.S. 809 (1975).
75
Id. at 826.
76 Id. at 809.
77 Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748 (1976).
78 Id
79 Id. at 762.
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DEPICTING THE GRAPHIC TRUTH
469
other forms of speech. Rather, it found that in a market economy, the
free flow of commercial information is necessary to ensure that economic decisions of consumers are "intelligent and well informed.""o
The Court did caution that untruthful speech "commercial or otherwise" would not be protected by the First Amendment.8 ' Thus it left
open the avenue for regulation on advertisement at a certain "time,
place, or manner, "82 or in instances when advertisement is "deceptive or
misleading."8 3 Since there was no showing that the advertisement was
deceptive or misleading, the ban was ultimately struck down."
In 1980, the Court provided a framework to assess the constitutionality of commercial speech regulation. In Central Hudson Gas and
Electric Corp. v. Public Service Commission ofNew York," the Court concluded that for such regulation to be constitutional, absent a purpose to
prevent deception, the state must assert a substantial interest, and
demonstrate that the regulation directly advances that interest.8 6 In addition, the means employed cannot be "more extensive than necessary to
serve that interest."17 In the event that the state's interest can be "as well
served by a more limited restriction on commercial speech, the excessive
restrictions cannot survive."8 8 However, the Court also emphasized that
commercial speech is afforded lesser protection under the Constitution
than other forms of protected expression.
Under this framework, the Supreme Court examined a regulation
implemented by the New York Public Service Commission, which prohibited an electrical utility from advertising the "promotion of the use of
electricity."90 It rejected the argument that the appellant's monopoly
over the electrical service rendered any protection of its speech unwarranted, since the speech could not aid the decision-making of consum80
Id. at 765.
81 Id. at 771.
Id. at 765. The Court found that such type of regulation would be permissible so long as
it served a significant governmental interest, and that in so doing they leave open ample alternative channels for communication of the information. Id.
83 See id. at 771 ("Obviously, much commercial speech is not provably false, or even wholly
false, but only deceptive or misleading. We foresee no obstacle to a state's dealing effectively
with this problem.").
84 Id. at 773.
85 Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557 (1980).
86 Id. at 564.
87 Id. at 566.
88 Id.
89 Id. at 563.
90 Id. at 579.
82
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ers.9 ' The Court highlighted that a monopoly could still wish to inform
consumers of any new services, and that its advertisements could aid
undecided consumers in determining whether they should subscribe to
the monopoly's services.92 While the Court found that the state's dual
interests of energy conservation and the preservation of fair and efficient
rates were substantial, the ban was struck down since its effectiveness in
serving these interests was "highly speculative." 93 In addition, the state
failed to show that its interests could not be adequately served by a more
limited restriction." The Court concluded that the commission could
have served its goals by restricting the format and content of the advertisements, rather than imposing a prohibition.9 5
In Zauderer v. Office of Disciplinary Counsel of Supreme Court of
Ohio,9 6 the Court provided guidance as to the First Amendment demands on a regulation that seeks to combat deceptive and misleading
commercial speech. The Court found that "the states and the Federal
Government are free to prevent the dissemination of commercial speech
that is false, deceptive, or misleading."9 7 Actions taken by the Federal
Government to prevent such speech would be subjected to a lesser level
of scrutiny, since additional disclosure by a company "trench[es] more
narrowly on the advertiser's interests than do flat prohibitions on
speech."' Thus, as long as the state is able to display that its disclosure
requirement is reasonably related to the interest of preventing advertisers
from deceiving or misleading the consumer, the regulation will be upheld.9 9 On the other hand, "unjustified or unduly burdensome disclosure requirements" would violate the First Amendment due to their
effect of chilling protected commercial speech." 0 0
Under this standard, the Court had little difficulty finding that an
attorney advertisement for representation on a contingent-fee basis,
would be required to disclose that the client would be responsible for
91
Id. at 566-67.
Id. at 567.
Id. at 569.
94 Id. at 570. The over intrusiveness of the statute was illustrated by its preventing Central
Hudson from the ability to advertise more energy efficient products and services. Id.
95 See Id. at 570-571.
96 Zauderer v. Office of Disciplinary Counsel of Sup. Ct. of Ohio, 471 U.S. 626 (1985).
97 Id. at 638.
98 Id at 651.
90 Id
100 Id
92
93
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DEPICTING THE GRAPHIC TRUTH
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costs even if his lawsuit was unsuccessful.'o The risk of deception by an
advertisement that did not make this distinction appeared obvious to
the Court. It found it to be commonplace that laypeople would conflate the definition of the terms, "fees" and "costs," thus making it unnecessary for the state to gather evidence, such as by conducting a public
survey.1 02 The Court declined to apply this standard on a portion of
the regulation which prohibited attorney advertisements from making
statements concerning law, since such statements are too indeterminate
to figure out which are misleading and which are not. 0 3 Thus, the state
was required to justify the restriction under the standard applied in Cen-
tral Hudson.'"
In subsequent cases, the Court has clarified the manner in which it
will employ the CentralHudson standard. Under this standard the Court
has reiterated that will determine: (1) "whether the expression is protected by the First Amendment;" (2) "whether the asserted governmental interest is substantial;" (3) "whether the regulation directly advances
the governmental interest asserted;" and (4) "whether it is not more
5
extensive than is necessary to serve that interest."' 1
In Edenfield v. Fane,0 6 the Supreme Court increased the burden
placed on the government under the third prong of Central Hudson.
This was done in order to ensure that a regulation did not serve a lesser
objective in the guise of serving a substantial interest. 0 7 In order to
establish that a regulation's means directly advance the state's interest, it
was required to demonstrate that the harms it sought to combat were
"real[,] . . . [and] [that] its restriction [would] in fact alleviate them to
a material degree."' 0 8 The Court warned that "speculation or conjecture" would not suffice.10 9 In that matter, the Court struck down a
prohibition on the personal solicitation of CPAs, pointing to a lack of
provided studies or anecdotal evidence establishing that CPA solicitation
101 See id. at 652. The State's concern was that potential clients would interpret the advertisement to mean that the service would be free even in the event of a loss in litigation, due to
the advertisement's lack of distinction between legal fees and costs. See id.
102 Id. at 652-53.
103 Id. at 643-44.
104 Id. at 644.
105 Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 554 (2001) (quoting Cent. Hudson Gas &
Elec. Corp. v. Pub. Serv. Comm'n of New York, 447 U.S. 557, 566 (1980)).
106 Edenfield v. Fane, 507 U.S. 761 (1993).
107 See id. at 771.
108 Id. at 770-71.
109 Id.
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led to the danger of fraud or overreaching.'
The Court would continue to use this understanding of the burden placed on the government
in subsequent matters."' Significantly, in Ibanez v. Florida. Department of Business & ProfessionalRegulation,1 12 it emphasized that this burden could not be alleviated by the government through bare assertions
that the regulated speech is "potentially misleading.""13
However, it appears that this understanding of Central Hudson's
third prong was tempered in subsequent matters:
We do not, however, require that "empirical data come . . . accompanied by a surfeit of background information. . . . [We have permitted
litigants to justify speech restrictions by reference to studies and anecdotes pertaining to different locales altogether, or even, in a case applying strict scrutiny, to justify restrictions based solely on history,
consensus, and simple common sense.""1
Applying this standard in Lorillard v. Reilly, the Court found that the
Attorney General of Massachusetts satisfied the third prong of Central
Hudson, which required the state to show whether the regulation at issue
directly advanced its asserted interest. It did so by citing to studies relied on by the FDA in its own rulemaking procedures and findings of
the National Cancer Institute, in order to show that the harms it sought
to alleviate in Massachusetts through regulations on outdoor advertisements of smokeless tobacco, and cigar advertisements were not speculative."' However, in this matter the Court highlighted the importance
of the fourth prong, characterizing it as the "critical inquiry" in Lorillard. While using seemingly soft language to characterize the prong,
"the least restrictive means is not the standard; instead case law requires
a reasonable 'fit between the legislatures' ends and means chosen to accomplish those ends," it struck down the regulation on outdoor advertisements for overbreadth. 1 6
Id. at 771.
111 See Ibanez v. Fla. Dep't of Bus. & Prof I Regulation, 512 U.S. 136 (1994); see also 44
Liquormart v. R.I., 517 U.S. 484, 505 (1996).
112 Ibanez, 512 U.S. 136.
113 Id. at 146.
114 See Lorilard Tobacco Co. v. Reilly, 533 U.S. 525, 555 (2001) (quoting Florida Bar v.
Went for It Inc., 515 U.S. 618, 628 (1995)).
115 Id. at 558-61.
116 Id. at 556. (quoting Florida Bar v. Went for It Inc., 515 U.S. 618, 632 (1995)).
110
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DEPICTING THE GRAPHIC TRUTH
473
In subsequent cases, the Court provided more clarity in its application of the Zauderer standard. In Milavetz, Gallop er Milavetz v.
U.S.,1 17 the Court applied the Zauderer framework when examining a
provision in the U.S. Bankruptcy Code,"' requiring debt relief agencies
and attorneys who provide bankruptcy assistance to make certain disclosures in their advertisements. Such disclosures include: "[w]e are a debt
relief agency. We help people file for bankruptcy relief under the Bankruptcy Code.""' 9 The Court analyzed the provision under the Zauderer
standard upon finding that it served to combat misleading commercial
speech and was a disclosure requirement.1 20
When examining whether the advertisements in question were misleading, the Court's majority seemed to have given deference to the
findings of the government. It emphasized that Zauderer does not require the state to conduct a survey before determining that an instance
of commercial speech may have the "tendency to mislead."12' The
Court found the statute's congressional record as sufficient to establish
that the likelihood for deception in this instance was hardly speculative,
since it demonstrated an existing pattern of advertisements that promise
debt relief but did not inform consumers of the costs that come with
it.12 2 When deciding if the requirement was reasonably related to
preventing consumer deception, the Court examined whether the compelled use of the term "debt relief agency" would be confusing and misleading to consumers.12 3 In doing so, the Court kept in mind that this
term would be accompanied by other phrases, which would provide
context to the term "debt relief agency," and thus prevented any resulting confusion.' 2 4
When working with both frameworks, the Court has declined to
uphold regulations exacted on persuasive commercial speech simply because it conflicted with the goals of the state. 12 5 The Court has stressed
that the First Amendment requires it to be skeptical of regulations that
117 Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S. 229 (2010).
118 11 U.S.C.S. §528 (LexisNexis 2006).
119 Milavetz, 559 U.S. at 233.
Id. at 249.
Id at 251; see also Spirit Airlines, Inc. v. U.S. Dept. of Transp., 687 F.3d 403, 413 (D.C.
Cir. 2012) (holding that the Department of Transportation did not need to find hard evidence
of deceit by airline advertisements in order to take measures to combat such deception).
122 Milavetz, 559 U.S. at 251.
120
121
123
Id.
124
Id. at 252.
Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2672 (2011).
125
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seek to keep the consumer "in the dark" for a paternalistic purpose.126
Simultaneously, it has continued to emphasize that commercial speech
is more amenable to government regulation than other forms of speech,
given the government's interest in protecting the consumer from "com-
mercial harms." 12 7
B.
The Plaintiffi' Challenge in Commonwealth Brands and
Discount Tobacco City
The Tobacco Industry initially issued a facial challenge to the Tobacco Control Act's mandate for graphic labels on tobacco packages, 12 8
which was the subject of Commonwealth Brands v. United States1 2 9 and
subsequently in Discount Tobacco City & Lottery Inc. v. US. 3 o The
challenge was made prior to the FDA's decision as to which graphic
images it would implement. The Tobacco Industry argued that the labels should not be subject to the Zauderer or CentralHudsonstandards.
Instead they argued that the mandate should be examined under strict
scrutiny, since this was not a regulation that required the dissemination
of "purely factual and uncontroversial information."1 3 The Tobacco
Industry's basis was that the mandate not only "'unjustifiably and unduly"' burdened their commercial speech, but it also compelled them to
become the "mouthpieces" for Congress' "anti-tobacco message." 1 3 2
They asserted that the mandate did not serve to inform consumers of
the health risks of smoking, but to "stigmatize and embarrass fully informed consumers who disagree with Congress as to whether 'the use of
tobacco [is] socially acceptable.' "133
126 See 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 503 (1996) (striking down a
Rhode Island ban on alcohol price advertisement outside of the place of sale); see also Linmark
Associates, Inc. v. Willingboro Twp., 431 U.S. 85, 96 (1977) (finding that a township ordinance
prohibiting the posting of real estate signs "For Sale" and "Sold" violates the First Amendment).
127 Sorrell, 131 S. Ct. at 2672; see City of Cincinnati v. Discovery Network, Inc., 507 U.S.
410 (1993); see also 44 Liquormart, 517 U.S. at 502.
128 Family Smoking Prevention and Tobacco Control Act, Pub. L. No. 111-31, §201, 123
Stat 1776.
129 Commonwealth Brands, Inc. v. United States, 678 F. Supp. 2d 512 (W.D. Ky. 2010).
130 Disc. Tobacco City & Lottery, Inc. v. U.S., 674 F.3d 509 (6th Cir. 2012).
131 Commonwealth Brands, Inc. v. U.S., 678 F. Supp. 2d 512, 530 (W.D. Ky. 2010); Disc.
Tobacco City & Lottery, Inc., 674 F.3d at 526.
132 Commonwealth Brands, Inc., 678 F. Supp. 2d at 528.
133 Brief for Appellants/Cross-Appellees, Disc. Tobacco City & Lottery, Inc., 674 F.3d 509,
(No. 10-5234), 2010 WL 6510607 at *8.
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DEPICTING THE GRAPHIC TRUTH
475
The Tobacco Industry claimed that the degree of intrusiveness of
the provision went beyond any legitimate interest in curbing misleading
advertisement. 1 3 4 They argued that the size requirements of the labels
would drown out their commercial speech.13 1 In addition, they argued
that the new warnings could not serve to inform the public of the health
risks of smoking, since there is no longer an informational deficit among
American consumers concerning these risks, and that the public actually
overestimates the risk of harm. 13 ' They also argued that the labels could
not serve the goal of influencing the behavior of current and potential
smokers, since any behavior changes could only result from consumers
being informed of risks they were previously unaware of. 3 7
The Western District of Kentucky upheld the mandate, finding
that the labels served not to embarrass consumers, but to ensure that the
communication of health risks were actually seen by consumers 'when
viewing tobacco packages.'13 The court found this purpose, and size
requirements justified due to the findings of institutions such as the
Institution of Medicine and the World Health Organization. 13 9 In addition, the court rejected the application of strict scrutiny, since this was
a not an instance where the regulation compelled the dissemination of a
message which was "subjective" and "uncontroversial." 14 According to
the court, the use of graphic imagery does not alter the substance of the
textual warnings mandated by the Tobacco Control Act.141 Due to this,
the court seemed to have little trouble finding that the requirements
& Lottery, Inc., 674 F.3d at 525.
Brief for Appellants/Cross-Appellees, Disc. Tobacco City & Lottery, Inc., 674 F.3d 509,
(No. 10-5234), 2010 WL 651060 at *8. The warnings would the constitute the "top 50% of
both sides of cigarette packaging, including with color graphics . . . 30% of the two principal
displays of smokeless tobacco packaging, and . . . 20% of all advertisements, including with
color graphics for cigarettes." See id; see also Commonwealth Brands, 678 F. Supp. 2d at 530.
136 Brief for Appellants/Cross-Appellees, Disc. Tobacco City & Lottery, Inc., 674 F.3d 509
(No. 10-5234), 2010 WL 651060 at *5.
137 Id. 2010 WL 651060 at *6.
138 Commonwealth Brands, Inc. v. United States, 678 F. Supp. 2d 512, 530 (W.D. Ky.
2010).
139 Among the findings that the court found persuasive were those in a 2007 report by the
Institute of Medicine, which found that 40% of viewers did not read purely textual warnings on
cigarette boxes, and that graphical warnings "'may be particularly important for communicating'
with consumers with low levels of education, given evidence that such smokers 'are less likely to
recall health information in text-based messages than people with more education.'" Id. at 53031.
140 Id. at 532.
134
Disc. Tobacco City
135
141
Id.
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were sufficiently tailored to pass constitutional muster under Central
Hudson. 14 2
C.
Opinion of the Sixth Circuit in Discount Tobacco City
When hearing this case on appeal, the Sixth Circuit looked to its
own commercial speech jurisprudence in order to decide which standard
would be controlling. In a prior matter, InternationalDairy Foods,
the court interpreted Milavetz to direct that regulations of inherently or
potentially misleading commercial speech be examined under the
Zauderer standard.1 4 The Sixth Circuit found that such images could
not be considered as mere health warnings nor could they be classified
as neutral due to their persuasive nature. 1 45 However the court did not
find strict scrutiny to be applicable, since the core speech of tobacco
manufacturers and distributors was not touched by the graphic labels,
nor were they prevented from disseminating their message."4 6 According to the court, in order to prevent the false impression to the consumer that smoking is harmless, the cigarette manufacturer who
"represents the alleged pleasures or satisfactions of smoking in its advertising must also disclose the serious risks to life that smoking involves."' 4 7 Upon this finding, the court applied the Zauderer standard.
It concluded that the mandated warnings could "appear in such a form,
or include such additional information, warnings, and disclaimers, as are
necessary to prevent its being deceptive."14
The dissent however found that the warning labels failed to satisfy
the Zauderer standard. While it did agree that the government had
shown that juveniles did not have a sufficient awareness of the dangers
of smoking, it found that the warning labels were not reasonably tailored to correct this informational deficit.' 4 9 According to the dissent,
the use of graphic images was not shown to materially advance this end
since they could not accurately convey all of the health risks associated
Id
143 Int'l Dairy Foods Ass'n v. Boggs, 622 F.3d 628 (6th Cit. 2010).
142
144 Id. at 641.
145 See Disc. Tobacco City & Lottery, Inc. v. United States, 674 F.3d 509, 525 (6th Cir.
2012).
146 See id.
147 Id. at 527 (6th Cit. 2012) (quoting Cipollone v. Liggett Group, Inc., 505 U.S. 504, 527
(1992)).
148
Id
149 Id. at 528.
DEPICTING THE GRAPHIC TRUTH
2014]
477
with tobacco use.'
It emphasized that the interpretation of these
images would vary between viewers, and may rest upon the viewpoints
of each individual.
D.
The Plaintiffi' Challenge in R.J Reynolds
The second challenge to the Tobacco Control Act would come after the FDA issued its Final Rule,"' announcing which labels it would
employ. 15 2 The tobacco industry challenged the requirement for
graphic images on cigarette boxes, and the nine images selected. 1" The
industry did not contend against the mandates for textual warnings, or
the authority of the FDA to require health warnings on tobacco product
packages. 15 ' Their claim was based on two grounds: (1) the lack of
proof of the effect that the images would have on the behavior of current and future tobacco consumers; and (2) that the rationale underlying the choice of imagery is impermissible under the First
Amendment.15 1 In order to support the contention that the images
would be ineffective, the Plaintiffs attacked the studies that the FDA
based its decision on. Statistics were brought to light that made similar
legislation of foreign governments, such as Canada, appear ineffective. 156
In addition, they alleged that the studies conducted by the FDA proved
Disc. Tobacco City, 674 F.3d at 530.
150
Required Warnings for Cigarette Packages and Advertisements; Final Rule, 76 Fed. Reg.
120 (June 22, 2011), available at http://www.gpo.gov/fdsys/pkg/FR-2011-06-22/pdf/2011-153
151
37.pdf.
R.J. Reynolds Tobacco Co. v. U.S. Food & Drug Admin., 696 F.3d 1205 (D.C. Cir.
152
2012).
153 Brief for Plaintiff-Appellees, RJ. Reynolds Tobacco Co., 696 F.3d 1205, 2012 WL 204198
at *7. The components which the Plaintiffs challenge are:
(1) new text, the substance of which Plaintiffs have not challenged; (2) large color
graphics that include cartoon images, photographs using actors and technological manipulation to maximize viewers' emotional response, and in one instance, an individual wearing a t-shirt depicting the universal "no smoking" symbol and declaration, "I
QUIT"; and (3) a smoking cessation hotline urging consumers to "QUIT-NOW."
Id. at *2-3.
154 R.j Reynolds Tobacco Co., 696 F.3d 1205.
155 Id. at 1212.
156
Brief for Plaintiff-Appellees, R.J. Reynolds Tobacco Co., 696 F.3d 1205, 2012 WL 204198
at *7. The plaintiffs criticize the methodology of studies conducted in Canada pertaining to
effect graphic images on cigarette packages has had on the smoking trends in the country; characterizing it as overestimating the actual impact such measures have actually had on smoking.
Id. at *5.
478
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that the images would be unsuccessful in "reducing smoking intentions
or informing consumers of health risks."' 5 7
The Tobacco Industry argued that the images did not convey
"purely factual and uncontroversial" information to the viewer.' 5 ' To
sustain this contention, they pointed to several features of the images.
For example, some of the images include cartoon drawings, and have
been digitally enhanced in order dramatize the illustration. Significantly, some of the images are gruesome as well. 159 They argued that
that in some instances they may mislead consumers into overestimating
the likelihood that smoking may cause adverse effects, and that they do
not convey new information concerning the risks of smoking.' 6 0 In addition, the Tobacco Industry claimed that the images were chosen by the
government to launch another anti-smoking campaign, and were selected due to their ability to invoke a negative emotional response to
smoking, rather than for their ability to inform consumers.'"' In essence the claim is that the images were picked since they were more
likely to cause viewers to "feel bad about smoking," 6 2 thus being useful
as a tool for advocacy, but not as an informative one.' 6 3 On this basis,
the Tobacco Industry concluded that the images should be subject to
strict scrutiny.'
In R.J Reynolds Tobacco Co. v. Food & DrugAdmin., the D.C. District Court found that the graphic images selected by the FDA, were not
permissible under the First Amendment.' 6 5 According to its analysis, the
selected images were not reviewable under the Zauderer analysis since
the images themselves were not factual, but sought to symbolize the
harms of smoking.' 6 6 Further, it rejected the FDA's contentions that the
images served to increase consumer awareness, or protect consumers
157
Id. at *9.
158
Id. at *24.
159 See id. at *24-25.
160 See id. at *24-25. In their brief, Plaintiffs focused their attention on the images which
depict a crying woman, a baby, and a t-shirt labeled "1-800-QUIT-NOW" in their claim that
the images are not formatted to convey heath information to the viewer, but serve to turn
tobacco packages into advertisements for the federal government's anti-smoking campaign. Id.
161 Id. at 9-10.
163
Id
See id. at 10. See also id. at 14.
164
R.J. Reynolds Tobacco Co. v. U.S. Food & Drug Admin., 845 F. Supp. 2d 266, 271
162
(D.D.C. 2012).
165 Id. at 277.
166 See id. at 273.
DEPICTING THE GRAPHIC TRUTH
2014]
479
from confusion or deception. Rather the court found that the labels
serve to evoke strong emotional responses from consumers, thus provoking them into quitting or not smoking in the first place.167
Under this rationale, the court analyzed the images under strict
scrutiny. Upon doing so, it held the use of the selected images as unconstitutional, finding that the interest of convincing consumers to not
smoke as not compelling. In addition, the court held that the display of
the images was not a narrowly tailored means towards achieving this
purpose due to their mandated size and content. 68
E.
The Opinion of the D. C. Circuit in R.J Reynolds
Similarly to Discount Tobacco City, the issue before the D.C. Circuit Court was whether the labeling requirements of the Tobacco Control Act serve the purpose of informing the public of the harmful effects
of smoking or to "shame and repulse smokers and denigrate smoking as
an antisocial act."' 6 9 On this basis the majority characterized the issue
as a question of whether the government could force a manufacturer to
not only disclose accurate information about its product, but also take
steps to undermine its own economic interest in doing so.' 7 o In this
instance, the FDA argued that the images served to correct the informational deficit and misperceptions among consumers, particularly
juveniles concerning smoking. While conceding that the images are not
meant to be interpreted literally, the FDA contested that they provide
context to the textual content of the warning labels.' 7 '
Persuaded by the reasoning of the Tobacco Industry, the D.C. Circuit found that Zauderer did not apply in this matter. The court had
found that the government failed to show that absent the warning labels, there is a "self evident or at least 'potentially real' danger" of misleading advertisement, due to a lack of congressional findings stating
that the packaging was a cause of deception. 72 The majority characterized current tobacco packaging as the industry playing by the government's rules.1 7 3 At the request of an amicus State, the majority also
Id. at 272.
Id. at 275-76.
169 R.J. Reynolds Tobacco Co. v. U.S. Food & Drug Admin., 696 F.3d 1205, 1211 (D.C.
Cir. 2012).
170 Id. at 1212.
171 Id. at 1216.
172 Id. at 1214.
173 Id. at 1215.
167
168
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examined the government's interest in providing a remedy for past deception by the Tobacco Industry.1 7 ' However the court did not find
this to call for the application of Zauderer, because the FDA did not
frame the rule as a remedial measure to combat deceptive claims by the
industry.17 1
The majority found that the images could not serve to correct deception on the part of the tobacco industry. It held that the images not
only failed to convey "purely factual and uncontroversial information,"
but in some instances failed to convey any information at all.17 6 Rather,
the majority interpreted the selected imagery as a means for the government to tap into the emotions of the viewer and "browbeat them" into
not smoking.17 7
The court would go on to analyze the matter under the framework
of Central Hudson. Despite the alternative interests asserted by the
FDA, the majority looked strictly to the statute and the administrative
record in finding that the substantial interest the government sought to
attain was the reduction in tobacco use, particularly by children and
adolescents.17 ' The majority concluded that the FDA did not provide
any evidence that the images could serve the interest of decreasing tobacco use.' 7 9 Despite calling the majority's attention to several studies
suggesting that the presence of such images could decrease the number
of smokers, the majority was not satisfied. It critiqued the studies as not
conclusive enough to prove that the FDA's efforts did more than potentially reduce the number of smokers. 8 o
In the alternative, the FDA asserted an additional interest in trying
to effectively communicate negative health consequences of smoking to
the consumer. However, the court rejected this interest, considering it
too vague to be legitimate and panned it as a subsidiary interest that
only served as a means towards the true goal of trying to reduce smoking rates. 18 ' Thus, by finding that none of the government's asserted
interests could be directly advanced by this provision of the Tobacco
174 Id. at 1215.
175 Id. at 1216.
176 Id. (quoting Zauderer v. Office of Disciplinary Counsel of Sup. Ct. of Ohio, 471 U.S.
626, 651 (1985)).
'77 Id. at 1217.
178 See id. at 1218.
'79
See id. at 1219.
180 See id. at 1219-20.
181 Id. at 1221.
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DEPICTING THE GRAPHIC TRUTH
481
Control Act, the majority concluded that the regulation was a violation
of the tobacco industry's commercial speech. 1 8 2
Despite the staunch stance taken by the majority towards FDA's
stated interest of trying to combat deceptive speech by the Tobacco Industry, the dissent by Circuit Judge Rogers, found that the appropriate
level of scrutiny to apply is a reasonable basis under Zauderer.m3 Unlike
the majority, Judge Rogers would go on to find that the FDA's stated
goal of informing the consumer of the health risks of tobacco is a strong
enough interest to satisfy both the standards of Zauderer and Central
Hudson.'18 Under this view, the majority failed to appreciate certain
significant factors in discrediting this interest as a subsidiary one. Those
factors include: the substantial danger that smoking poses to the health
of the American public; that the leading demographic of new smokers
(children and adolescents) is also the group most likely to underestimate
the level of addiction and the health risks of smoking;'18 and that the
existing warning labels were found to have gone largely unnoticed by the
public."' In addition, Judge Rogers considered the level of campaigning the Tobacco Industry waged over several decades to not only sway
the public towards a favorable attitude towards smoking, but to also
conceal the harmful health consequences of tobacco use. 187 Looking to
Milavetz, the dissent found that Zauderer applied, since such findings
were enough to show that existing packages, by not sufficiently bringing
to light the risks that come with smoking, would have a tendency to
mislead consumers. 188
When examining the graphic images, the dissent did so while acknowledging that they are accompanied by a textual warning, rather
than viewing them in isolation.1 89 Under this analysis, Judge Rogers
rejected the notion that by displaying images, the warnings cease to convey factual information due to their graphic nature. On the contrary, it
appreciated the ability of images to capture the attention of consumers
182 Id. Even when using the method by which the D.C. Circuit's measured effectiveness, in
terms of the reduction in the smoking rate, it criticized the images as not directly advancing that
interest as well. Id.
183 Id. at 1222 (Rogers, J., dissenting).
184 See id. at 1237-38.
185 Id. at 1223.
186 Id. at 1224.
187
Id.
188
Id. at 1228.
189 Id. at 1231.
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and directly impart the information provided in the textual aspect of the
label.1 9 o Judge Rogers commented that the images are in fact graphic
and disturbing, however he acknowledged that this is because the negative effects of smoking can be disturbing.' 9 1 The notion that there is a
significant legal distinction behind labels which invoke emotion and
those which only disclose information was dispelled for lack of legal
support. 1 9 2 The dissent concluded that the methods by the government
could satisfy the burden of Zauderer since the use of graphic imagery is
reasonably related to the concerns of the government.
When examining the government action under the framework of
CentralHudson,the dissent found that the images, with the exception of
one, 193 were also found permissible under the First Amendment. Unlike
the majority, the dissent did not discredit the stated interest of the government to inform the viewer of the health risks of smoking as a subsidiary interest, but rather looked to the FDA's own stated interest of
communicating the harms of smoking. 9 4 Circuit Judge Rogers then
concluded that the images directly served the FDA's interest by ensuring
at least that individuals will view the health risk messages.' 95 Looking to
the failures of the previous labels to convey health warnings, and the
proposed alternatives of the tobacco industry, which closely resemble
those labels, Rogers concluded that the labels were not a means "more
extensive than necessary."1 9
IV. THE
CONSTITUTIONALITY OF THE
G1uPHIC IMAGES
The concerns of the Tobacco Industry and the D.C. Circuit in R.J.
Reynolds are well founded. While commercial speech is the least protected form of speech under the Constitution, the need for its protection from over-intrusive government regulation is nonetheless important
190 Id. at 1230 (the Dissent goes on to discuss how each picture serves to underline the
accompanying textual component of the warning label).
191 Id. at 1230.
192 Id. (the dissent comments that the Plaintiffs fail to point to any case law which distinguishes the use of appealing to fact or emotion).
193 See R.J. Reynolds Tobacco Co., 696 F.3d at 1223 (the image seen as problematic under the
Central Hudson framework, depicted a man wearing a t-shirt labeled "1-800-QUIT-NOW,"
since this image did not serve to warn consumers of health risks).
194 Id. at 1235. The Dissent comments that there is nothing in the record which shows that
the interest of effectively informing the public of the health risks of smoking is to be overridden
by other interests behind the legislation. Id.
195 Id.
196 Id. at 1236.
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DEPICTING THE GRAPHIC TRUTH
483
in the setting of a market economy. In this setting, the consumer
should be able to obtain as much information as possible about a product they are considering to purchase.' 97 The use of graphic labels
presents unique and challenging issues for courts in assessing the extent
the government can place burdens on commercial speech. One issue is
whether the government can take measures to prevent the deception or
misleading of consumers, through the dissemination of a message that is
factually correct, but also appeals to our sentiments. In the event that it
can, it must be decided up to what extent this can be done. Another
issue is whether the government can burden commercial speech through
disclosure requirements, even if the speech is not deceptive or misleading. If the answer is yes, it must be decided what standard courts should
employ to assess those requirements.
The R.j. Reynolds majority attempted to juggle these issues in its
effort to prevent what it considered as a hostile takeover of cigarette
boxes. While in some instances the majority correctly applied existing
commercial speech jurisprudence, in several others, the majority distorted the protection afforded to commercial speakers under Zauderer
and CentralHudson. Looking both to the dissent in RJ Reynolds and the
majority in Discount Tobacco City, one can see how the tobacco labels
issued in the Final Rule could have passed the First Amendment
hurdles.
In its analysis, the R.J. Reynolds majority dismissed the notion that
Zauderer applied. Its first basis is that the FDA's selection of the labels
did not directly serve the interest of preventing deceptive speech.' 98 In
this portion of the decision, the majority appears to take a hard-line
interpretation of Milavetz, requiring that a regulation must be implemented for the explicit interest to combat deceptive or misleading
speech, rather than an interest, which may be related to preventing consumer deception. Under a more relaxed interpretation of Zauderer, one
might conclude that the standard applies so long as the interest is related
to preventing consumer deception, or that speech not need be misleading at all for it to apply, if a regulation imposes disclosure.' 99
197 Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 762
(1976).
198 R.J. Reynolds Tobacco Co., 696 F.3d at 1213.
199 See New York State Rest. Ass'n v. New York City Bd. of Health, 556 F.3d 114, 133 (2d
Cir. 2009).
484
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The arguments by the FDA strongly suggest a concern that existing
tobacco packages and advertisements are misleading, and thus the tobacco labels serve to combat that danger. 200 However the FDA did not
explicitly argue that its aim was to combat deception. Rather they state
that the aim was to advance the government's interest in communicating health information.20 1 Under the majority's interpretation it would
seem that the FDA's interest would not allow for the deferential standard to apply. As seen in Milavetz, preventing the deception of consumers appears key to the application of Zauderer.20 2 Thus, it seems
reasonable for the R.j. Reynolds majority to find Zauderer inapplicable.
While there appears to be room in Milavetz for a more liberal interpretation of this prong, the Supreme Court has not provided expressed
support for that reading.
The more problematic application lies in the majority's findings
that the FDA did not point to any real harm to consumers from the
existing packages, and that the labels could not combat deception to a
degree necessary under Zauderer. Coming to the first of these two conclusions, the majority quickly dismissed the possibility that the tobacco
packages misled consumers, due to a lack of congressional findings, relying on Milavetz as its basis for doing so. 2 0 3 However, this was a major
blunder on its part. As discussed in Part III, in Milavetz, the Supreme
Court merely found that congressional findings could serve as adequate
evidence of possible deception.2 04 In no way did the Court conclude
that this was the exclusive manner to allow for a finding of possible
consumer deception. As recognized by Judge Rogers, and the Discount
Tobacco City majority, the Zaudererstandard permits disclosure requirements, so long as the government can show that a form of commercial
speech has a "tendency to mislead." 2 05 Zauderer and Milavetz allow for
the government to show such a tendency without having to take extensive measures such as "conduct[ing] a survey" of the public. Contrary to
200 See Reply Brief for Appellants at 10, R.J. RJ.Reynolds Tobacco Co., 696 F.3d 1205, 2012
WL 507840 at *10.
201 Id. at 28.
202 Milavetz, Gallop & Milavetz, P.A. v. U.S., 559 U.S. 229, 249-251 (2010) ("[T]he Government maintains that §528 is directed at misleading commercial speech. For that reason, and
because the challenged provisions impose a disclosure requirement rather than an affirmative
limitation on speech, the Government contends that the less exacting scrutiny described in
Zauderer governs our review. We agree.").
203 R.J. Reynolds Tobacco Co., 696 F.3d at 1214-15.
204 Milavet
559 U.S. at 251.
205 Id.
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DEPICTING THE GRAPHIC TRUTH
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the Majority, Judge Rogers recognized that the FDA provided ample
support in the form of congressional findings, and studies provided in
the record, that show the existence of an informational deficit among
consumers spanning all generations, and that consumers fail to take notice of the existing warnings on tobacco packages.20 6
Furthermore, the D.C. Circuit majority discredited the warning
labels as not being reasonably related to preventing the deception of
consumers, since in its view, the images fail to portray "purely factual"
information, and may actually cause the consumer to misinterpret the
label's message.2 0 7 The Majority characterized the images as "inflammatory . . . unabashed attempts to evoke emotion," which are not an
attempt to convey pure information but "shock the viewer into retaining the information in the text. "208 In making this faulty assessment,
the majority ignores that the images were not mandated to appear on
boxes on their own, but were supposed to supplement the textual message of the warning labels, which only disclose scientifically verified information.2 0 9 Such an examination runs afoul of the method used by
the Supreme Court in assessing the disclosure requirement in Milavetz,
as discussed in Part III, the Court assessed whether the term "debt relief
agency" would be confusing to consumers in the context that they
would also appear next to other phrases which would constrain their
interpretation.2 1 0 Similarly, the textual component of the labels greatly
constrains the interpretation of the viewer since it clearly states what
information it is trying to call to the consumer's attention. For example, a label with a picture of a diseased discolored lung, would have the
words listed below it "Warning: Cigarettes cause fatal lung disease." 2 11
Thus the image is not displayed in a manner where it is left to the
unbounded interpretation of the viewer, but rather is given a context as
to what is being conveyed behind the image.
In addition, by ignoring the symbiotic relationship of the label's
images and text, the majority also downplays the utility of the labels in
See R.J. Reynolds Tobacco Co., 696 F.3d at 1234.
Id. at 1216.
208 Id. at 1216-1217.
209 Id. at 1216 (the exception being the label "WARNING: Quitting smoking now greatly
reduces serious risks to your health," which does not really serve as a warning label, but tries to
convince the viewer to quit smoking).
210 Milavetz, Gallop & Milavetz, P.A. v. U.S., 559 U.S. 229, 251 (2010).
211 See CENTER FOR TOBACCO PRODUCTS FOOD AND DRUG ADMINISTRATION, supra note
6.
206
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ensuring that the viewer is in fact being educated on health risks. As
found in the FDA's study, several of the graphic labels enhanced the
recall of the viewer as to the message behind the labels, partially due to
the emotional impact that it had on the viewer.2 12 The effectiveness of
this mode of communicating health risks serves one of the main policies
behind the protection of commercial speech, which is that the consumer
is able to make an "intelligent and well informed" decision when
purchasing a product in a "free enterprise economy." 2 1 3 By recognizing
that the labels help serve this purpose, the Sixth Circuit and the D.C.
Circuit dissent were both correct to recognize that the labels could pass
First Amendment scrutiny under Zauderer.
While the images in some of the labels may be inflammatory and
disturbing, as Circuit Judge Rogers acknowledged, this is because the
health risks of smoking are themselves disturbing. 2 14 Under the rationale of the D.C. Circuit majority, if scientifically proven information
may be upsetting to the viewer, regulation requiring it to be disclosed on
a package would not pass constitutional muster. Significantly, there has
not been First Amendment adjudication, which makes a legal distinction between presenting factual information in a dry fashion and doing
so through illustration, which partially appeals to emotion.2 1 5
Another flaw in the majority's reasoning is its contention that the
labels could be misinterpreted by the consumers. The problem here is
that a warning statement about a potential health risk, even if unaccompanied by a supplemental illustration, could still be misinterpreted by
the consumer. However, this is not a workable basis for prohibiting
such disclosure as many statements of health risks are going to be over
and underestimated by consumers. Such reasoning would greatly
heighten the burden of any government regulation that requires an informational disclosure in order to ensure that it does not violate the First
Amendment.
An interesting aspect of the D.C. Circuit majority's assessment is
its application of Central Hudson after finding that Zauderer did not
apply. The Supreme Court has yet to provide guidance as to how courts
should assess regulations that burden commercial speech with disclosure
212
213
See id. at 4-3.
Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 765
(1976).
214 See R.J. Reynolds Tobacco Co. v. U.S. Food & Drug Admin., 696 F.3d 1205, 1230
(D.C. Cir. 2012) (Rogers, J., dissenting).
215 Id. at, 1231.
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DEPICTING THE GRAPHIC TRUTH
487
requirements, but are found to not address consumer deception. In
light of this, the court relied on its own precedent to justify the application of CentralHudson.2 16 The majority correctly rejected the application of strict scrutiny since this is not an instance where highly protected
core political speech is burdened. As recognized by the D.C. Circuit,
commercial speech is subject to "a lower level of protection under the
First Amendment," 2 1 7 thus it would be contradictory to apply strict
scrutiny. Applying strict scrutiny would also be inappropriate as the
requirement at issue mandated the disclosure of information. This follows the reasoning of the Supreme Court in Zauderer,which recognized
that disclosure requirements "trench much narrowly on an advertisers
interest than do flat prohibitions on speech." 2 18
The use of a CentralHudson-like intermediate standard is appropriate in such instances, since its implementation would be onset by
finding the commercial speech being burdened is not deceptive or misleading. However, it appears the hurdles that CentralHudson places on
government regulation stem from the Court's concern for the potential
suppression of the dissemination of pertinent information to the consumer, rather than a compelled disclosure of information.2 1 9 This is
important as the Court considers disclosure requirements as significantly
less burdensome on advertisers than a restriction on information.2 2 0
Thus, when applying the Central Hudson standard in this context,
courts would have to keep this distinction in mind.
Contrary to the findings of the D.C. Circuit Court's majority, the
FDA's labels are able to pass the intermediate scrutiny framework of
CentralHudson. Its application of the standard did not fall in line with
the Supreme Court's guidance on how to apply it. In applying the second prong of the test, the majority was correct that one of the substantial interests behind the labels is to reduce the number of Americans
216
Id. at 1217 (majority opinion).
217
Id
Zauderer v. Office of Disciplinary Counsel of Sup. Ct. of Ohio, 471 U.S. 626, 651
(1985).
219 See 44 Liquormart v. R.I., 517 U.S. 484, 511 (U.S. 1996) ("[W]e think it quite clear that
banning speech may sometimes prove far more intrusive than banning conduct."); see also Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 564 (2001) ("We must consider that tobacco retailers
and manufacturers have an interest in conveying truthful information about their products to
adults, and adults have a corresponding interest in receiving truthful information about tobacco
products.").
220 "[D]isclosure requirements trench much narrowly on an advertisers interest than do flat
prohibitions on speech." Zauderer, 471 U.S. at 651.
218
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who smoke. However as Judge Rogers pointed out, it was improper to
dismiss the government's other stated interest that the labels serve to
inform consumers of the dangers of smoking. Such intent cannot only
be found in the arguments by the FDA, but in the FDA's Final Rule. 2 2 1
Such an interest is one that the Supreme Court has recognized as substantial under CentralHudson.22 2
As noted in Part III, the Supreme Court, through more contemporary decisions made the third prong of the Central Hudson standard
more lenient. 22 3 In Lorillard Tobacco Co. v. Reilly224 the Court stated
that the government may justify its means based on "history, consensus,
and simple common sense," and need not come armed with "empirical
data accompanied by a surfeit of background information." 2 25 This language is a far cry from the sweeping search the R.J. Reynolds majority
employed. The FDA did more than satisfy its means via common sense,
but provides ample support for the cognitive influence the labels would
have on smokers and non-smokers. Specifically, the studies it relied on
described the images ability to grab the attention of viewers, and implant the information it communicated into the viewer's memory.22 6
Both of these abilities allow the images to serve both of the government's interests of communicating health risks to consumers, and imposing a behavioral change among smokers.22 7
Lastly, the mandate satisfies the final prong 228 of CentralHudson.
As Circuit Judge Rogers pointed out, by looking to the prior warning
labels inability to serve the government's interest, it may be concluded
that looking to similar alternatives will not serve that interest as well.22 9
While there might be less intrusive alternatives available to serve this
Required Warnings for Cigarette Packages and Advertisements, 75 Fed. Reg. 69524-01,
cmt. 26 (proposed Nov. 12, 2010).
222 Edenfield v. Fane, 507 U.S. 761, 769 (1993) ("For purposes of that test, there is
no
question that Florida's interest in ensuring the accuracy of commercial information in the market-place is substantial.").
223 "Whether the regulation directly advances the governmental interest asserted." Lorillard
Tobacco Co. v. Reilly, 533 U.S. 525, 554 (2001).
224 See id. at 555.
225 Id. (quoting Florida Bar v. Went for It Inc., 515 U.S. 618, 628 (1995)).
226 See discussion infra Part I.
227 Required Warnings for Cigarette Packages and Advertisements, 75 Fed. Reg. 69524-01
(proposed Nov. 12, 2010) (to be codified at 21 C.F.R. pt. 1141).
228 "[Whether [the] [means] [are] not more extensive than is necessary to serve that interest."
Lorillard Tobacco Co., 533 U.S. at 556.
229 R.J. Reynolds Tobacco Co. v. U.S. Food & Drug Admin., 696 F.3d 1205, 1236 (D.C.
Cir. 2012).
221
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DEPICTING THE GRAPHIC TRUTH
489
goal, the Supreme Court has repeatedly emphasized that the means employed do not need to be the least restrictive ones available. 23 0 Rather,
the FDA's labels reasonably serve Congress's goal of informing consumers, and ensuring that those consumers pay attention to the health risks
of smoking. The D.C. Circuit's decision simply constrains the FDA to
such similar alternatives.
CONCLUSION
While the majority opinion of R.J Reynolds found that the First
Amendment prohibits the use of graphic images on cigarette warning
labels, it employed a flawed methodology and assessment of Supreme
Court precedent. As seen by the Sixth Circuit in Discount Tobacco City
and Circuit Judge Rogers of the D.C. Circuit, the warning label provision of the Tobacco Control Act can clear the First Amendment hurdles
of Zauderer and CentralHudson if correctly applied.
On March 15, 2013, the FDA announced that it will not seek writ
of certiorari pertaining to the decision in R.J. Reynolds. 2 31 However, it
noted that it will continue to make additional rulings, in order to carry
out its mandate under the Tobacco Control Act. There is no doubt that
the images the FDA sought to depict in their warning labels are far from
uncontroversial. However, given the persuasive power that imagery has
on the viewer, the use of such type of imagery would be a large step
towards combating the proliferation of smoking among Americans, and
could potentially save many lives.
Lorillard Tobacco Co., 533 U.S. at 556 (quoting Florida Bar v. Went For It, Inc., 515 U.S.
618, 632 (1995)).
231 Letter from FDA to John Boehner, Speaker of the House (Mar. 15, 2013), available at
http://www.mainjustice.com/files/2013/03/Ltr-to-Speaker-re-Reynolds-v-FDA.pdf.
230