96 F.4th 863
5th Cir.2024Background
- In 2009, Congress passed the Family Smoking Prevention and Tobacco Control Act (TCA), requiring new cigarette package warnings with color graphics depicting the negative health effects of smoking.
- The FDA’s first attempt at implementing the graphics requirement was overturned by the D.C. Circuit in 2012 for violating the First Amendment; meanwhile, the Sixth Circuit upheld the constitutionality of the Act itself.
- In 2020, FDA issued a revised rule with new text-and-image warnings, which tobacco companies challenged as unconstitutional compelled speech and a violation of the Administrative Procedure Act (APA).
- The district court ruled for the tobacco companies, holding that the warnings were not purely factual or uncontroversial and thus failed the First Amendment under Zauderer scrutiny; it vacated the FDA rule.
- FDA appealed; the Fifth Circuit reversed, finding the warnings both factual and uncontroversial, and held Zauderer was the correct standard, remanding for the district court to review the APA claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Zauderer Applicability | Warnings not purely factual/uncontroversial; Zauderer inapplicable | Warnings are factual, uncontroversial; Zauderer applies | Zauderer applies because warnings are factual and uncontroversial |
| Sufficient Government Interest | Only anti-deception interests suffice under Zauderer | Legitimate informational interest suffices | Government’s informational interest is sufficient |
| Unduly Burdensome | Warnings burden more speech than necessary | Warnings do not drown out other speech, are proportionate | Warnings not unduly burdensome under Zauderer |
| APA Claim (not reached below) | FDA issued rule in violation of APA | Rule procedurally proper; followed appropriate study | Remanded to district court for initial consideration |
Key Cases Cited
- Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985) (sets standard for compelled commercial disclosures: must be factual and uncontroversial, reasonably related to government interest)
- Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980) (establishes intermediate scrutiny for commercial speech restrictions)
- National Institute of Family & Life Advocates v. Becerra, 585 U.S. 755 (2018) (compelled disclosures must be factual, uncontroversial, and address real, not hypothetical, harm)
- Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S. 229 (2010) (Zauderer applies to factual commercial disclosures to prevent misleading speech)
- Discount Tobacco City & Lottery, Inc. v. United States, 674 F.3d 509 (6th Cir. 2012) (upheld constitutionality of TCA’s graphic warning requirement under Zauderer)
- R.J. Reynolds Tobacco Co. v. FDA, 696 F.3d 1205 (D.C. Cir. 2012) (struck down first FDA graphic warnings rule as not purely factual/uncontroversial)
- Chamber of Commerce v. SEC, 85 F.4th 760 (5th Cir. 2023) (Zauderer applies to commercial disclosure requirements with legitimate informational interests)
- NetChoice, LLC v. Paxton, 49 F.4th 439 (5th Cir. 2022) (Zauderer scrutiny applies to disclosure requirements intended to inform consumers)