R.J. Reynolds Tobacco Company v. United States Food and Drug Administration
845 F. Supp. 2d 266
D.D.C.2012Background
- Five tobacco companies challenge FDA's Final Rule requiring nine graphic images and accompanying textual warnings on cigarette packages and advertisements.
- Rule requires the graphic images and warnings on the top 50% of the front and back panels, with warnings also occupying the top 20% of all printed advertising; effective September 22, 2012.
- Plaintiffs allege First Amendment violations and APA concerns; preliminary injunction granted on November 7, 2011, addressing the speech issue.
- Final Rule selected nine images from an initial 36 proposed images; the images are designed to evoke emotion and support cessation messaging, not purely factual information.
- Rule also requires a toll-free cessation resource (1-800-QUIT-NOW) on each package; the 15-month implementation period was set, with compliance required for products manufactured on or after September 22, 2012.
- Court grants plaintiffs' motion for summary judgment, holding the Rule unconstitutionally compels speech in violation of the First Amendment; cross-motion denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the Rule compel speech in violation of the First Amendment? | Reynolds argues compelled anti-smoking message violates free speech. | FDA contends disclosures, though speech, fit within commercial speech doctrine. | Yes; compelled speech violates the First Amendment. |
| What level of scrutiny applies to the compelled speech? | Strict scrutiny should apply to compelled corporate speech. | Rule should be reviewed under intermediate scrutiny for commercial speech. | Strict scrutiny applies. |
| Is the Rule narrowly tailored to achieve a compelling interest? | Rule is overbroad and not narrowly tailored; undermines speech rights. | Rule aims to inform and deter, within a statutory framework. | No; not narrowly tailored. |
| Does Zauderer apply as a purely factual and uncontroversial disclosure exception? | Images are not purely factual; not within Zauderer. | Disclosure could be viewed as factual information under Zauderer. | Zauderer exception does not apply. |
Key Cases Cited
- Hurley v. Irish-American Gay, Lesbian & Bisexual Grp. of Boston, Inc., 515 U.S. 557 (1995) (speech rights include right not to speak; compelled messaging is problematic)
- Wooley v. Maynard, 430 U.S. 705 (1977) (right to refrain from speaking is protected)
- Zauderer v. Office of Disciplinary Counsel of Ohio, 471 U.S. 626 (1985) (purportedly factual disclosures receive less scrutiny)
- Blagojevich v. Entertainment Software Ass'n, 469 F.3d 641 (7th Cir. 2006) (compelled labels on video games deemed not purely factual; not narrowly tailored)
- Sorrell v. IMS Health, Inc., 131 S. Ct. 2653 (2011) (the state cannot burden speech to tilt public debate in a preferred direction)
- Pac. Gas & Elec. Co. v. Pub. Utils. Comm'n of Cal., 475 U.S. 1 (1986) (commercial speech regulatory scrutiny in some contexts)
- Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995) (content-based funding of speech requires viewpoint neutrality)
- Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557 (1980) (test for commercial speech under intermediate scrutiny (informational disclosures))