Cigarette label rules: Legitimate warning or ‘compelled speech’?

In choosing a passel of new graphic warning labels that the U.S. government would have cover half of every cigarette package sold, officials of the Food & Drug Administration wrestled with one of the central questions of any public health campaign worth its salt: Would the warnings get a rise out of smokers?

If the reaction of five of the nation’s largest manufacturers of tobacco products is any indication, they will. On Tuesday, five of the nation’s six largest tobacco manufacturers sued the U.S. government to block the new requirement that graphic warnings cover half of every pack sold by October 2012, calling the ruling a violation of their free-speech rights.

More specifically, the tobacco companies called the requirement an unconstitutional case of “compelled speech” that the 1st Amendment to the U.S. Constitution prohibits.

Laws passed by Congress and signed into law in 1965, 1969 and 1984 all required warning labels to appear on cigarette packaging. That’s how the message “Warning: The Surgeon General has determined that cigarette smoking is dangerous to your health” came to be printed down the side of the package.

Apparently, there was no “compelled speech” there -- the tobacco companies adopted the warnings with little protest. One possible reason for the tobacco companies’ lack of righteous indignation might have been suggested in 1981 by a finding of the Federal Trade Commission: “there is virtually no evidence that the warning statement on cigarette packages has had any significant effect,” the FTC found.

On Wednesday, R.J. Reynolds executive vice president and general counsel Martin L. Holton III charged that the graphic warnings called for by the FDA include “nonfactual cartoon images and controversial photographs that have been technologically manipulated to maximize an emotional response from viewers.”

The FDA, Holton huffed, is “essentially turning our cigarette packs into mini-billboards for the government’s anti-smoking message.”

So when the health warnings are ineffective, they’re a nuisance. If they draw an “emotional response from viewers” -- say, the sort of emotional response that a 1991 JAMA article found the cartoon image of Joe Camel had on children (they were more likely to recognize Joe Camel than Mickey Mouse or Fred Flintstone) -- they’re “compelled speech.”

One measure that experts actually use to determine whether a public health campaign will be effective is called “avoidance”: Do consumers look away, cover up, turn the channel, rather than look at a public health message? In Canada -- the first country to require cigarette packs to carry graphic warning labels -- a market for cigarette-pack sleeves sprung up overnight. That consumers would be so motivated to cover up the pictures on their cigarette packs was evidence that the message had gotten under their skin.

And for the record, the FDA would likely not contest Holton’s characterization of the agency’s intent to use half of every cigarette pack as a “mini-billboard” for its message. On June 21, 2011, in unveiling its new images, Dr. Howard Koh, assistant secretary of the Department of Health and Human Services, said the graphic warning labels would make cigarette packages “new mini-billboards for prevention.”