R.J. REYNOLDS TOBACCO COMPANY, Lorillard Tobacco Company, Commonwealth Brands, Inc., Liggett Group LLC, and Santa Fe Natural Tobacco Company, Inc., Plaintiffs, v. UNITED STATES FOOD AND DRUG ADMINISTRATION, Margaret Hamburg, Commissioner of the United States Food and Drug Administration, and Kathleen Sebelius, Secretary of the United States Department of Health and Human Services, Defendants.
Civil Case No. 11-1482 (RJL)
United States District Court, District of Columbia.
Feb. 29, 2012.
845 F. Supp. 2d 266
RICHARD J. LEON, District Judge.
Finally, Plaintiffs assert that adhering to the United States’ Suggestion of Immunity “would [] permit usurpation of the judicial power by the Executive.” Pls.’ Opp‘n at 5. To the contrary, “[s]eparation-of-powers principles impel a reluctance in the judiciary to interfere with or embarrass the executive in its constitutional role as the nation‘s primary organ of international policy.” Spacil, 489 F.2d at 619. As the Seventh Circuit explained, “[t]he determination to grant (or not grant) immunity can have significant implications for this country‘s relationship with other nations. A court is ill-prepared to assess these implications and resolve the competing concerns the Executive Branch is faced with in determining whether to immunize a head of state.” Ye, 383 F.3d at 626-27. This Court is not in a position to second-guess the Executive‘s determination that in this case, the nation‘s foreign policy interests will be best served by granting Defendant Rajapaksa head of state immunity while he is in office.
III. CONCLUSION
For the foregoing reasons, the Court finds it is bound by the United States’ Suggestion of Immunity which suggests Defendant Rajapaksa is entitled to head of state immunity while he remains in office. Head of state immunity is a well established principle of federal common law, which Congress did not override in enacting the Torture Victim Protection Act. This Court is required to defer to the Executive Branch‘s finding that Defendant Rajapaksa is immune from suit in this case while he remains in office. Therefore Plaintiffs’ [8] Motion to Enter Order Validating Service of Process is DENIED this case is DISMISSED.
An appropriate Order accompanies this Memorandum Opinion.
Geoffrey Kres Beach, Womble, Carlyle, Sandridge & Rice, LLP, Winston-Salem, NC, Noel John Francisco, Warren Postman, Jones Day, Patricia Anne Barald, U.S. Commodity Futures Trading Commission, Scott Darren Danzis, Covington & Burling LLP, Philip Jonathan Perry, Latham & Watkins, Jonathan D. Hacker, O‘Melveny & Myers, LLP, Washington, DC, Floyd Abrams, Joel L. Kurtzberg, Kayvan Sadeghi, Cahill Gordon & Reindel LLP, New York, NY, for Plaintiffs.
RICHARD J. LEON, District Judge.
Plaintiffs in this case (“plaintiffs“) are five tobacco companies, which include the second-, third-, and fourth-largest tobacco manufacturers and the fifth-largest cigarette manufacturer in the United States. Complaint (“Compl.“), Aug. 16, 2011, ¶¶ 8-12 [Dkt. # 1]. In June 2011, defendant United States Food and Drug Administration (“FDA“) published a Final Rule requiring (among other things) the display of nine new textual warnings—along with certain graphic images1 such as diseased lungs and a cadaver bearing chest staples on an autopsy table—on the top 50% of the front and back panels of every cigarette package manufactured and distributed in the United States on or after September 22, 2012. See FDA, Required Warnings for Cigarette Packages and Advertisements, 76 Fed. Reg. 36,628 (June 22, 2011) (“the Rule“); see also Mem. in Supp. of Pls.’ Mot. for Summ. J. and Permanent Inj. (“Pls.’ Mot.“), Aug. 19, 2011, at 3-5 [Dkt. # 10]. Alleging that the Rule violates the First Amendment and the Administrative Procedure Act (“APA“),
BACKGROUND4
I. Statutory and Regulatory History
A. The Act
The Family Smoking Prevention and Tobacco Control Act (“Act” or “the Act“), Pub. L. No. 111-31, 123 Stat. 1776 (2009),
“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.” Act § 201(a) (amending
15 U.S.C. § 1333(a)(1) ).5
Congress required that these new textual warnings and graphic images occupy the top 50% of the front and back panels of all cigarette packages, Act § 201(a) (amending
B. The Rule
1. Proposed Rule
On November 12, 2010, the FDA submitted for public comment a Proposed Rule unveiling 36 graphic color images that could be displayed with the 9 new textual warnings created by Congress.6 Required Warnings for Cigarette Packages and Advertisements, 75 Fed. Reg. 69,524; 69,534-69,535 (Nov. 12, 2010) (to be codified at 21 C.F.R. Part 1141); Compl. ¶¶ 36, 38; Defs.’ Opp‘n at 10-11. In addition, the Proposed Rule required cigarette packaging and advertising to include “a reference to a smoking cessation assistance resource” and set forth related requirements for what that resource must
2. Final Rule
After a period of notice and comment in which the FDA reviewed more than 1,700 comments, it published a Final Rule on June 22, 2011. See 76 Fed. Reg. 36,628-36,629; Compl. ¶ 57. Of the 36 graphic images originally proposed, the FDA chose 9 for publication. Compl. ¶ 57. The new graphic images, which will rotate according to an agency-approved plan, Act § 201(a) (amending
In addition to being paired with one of the nine new textual warnings introduced
ANALYSIS
I. Standard of Review
Summary judgment is appropriate when the movant demonstrates that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law.
II. First Amendment Claim
Plaintiffs oppose the placement of the Government-mandated warnings on the top 50% of the front and back portions of their cigarette packaging.10 Pls.’ Mot. at 1. In particular, plaintiffs argue that the new Rule unconstitutionally compels speech, see Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, Inc., 515 U.S. 557, 573-74 (1995); Wooley v. Maynard, 430 U.S. 705, 714 (1977), and that such speech does not fit within the “commercial speech” exception under which certain types of Government-mandated, informational disclosures are evaluated under a less restrictive standard, see Zauderer v. Office of Disciplinary Counsel of Sup. Ct. of Ohio, 471 U.S. 626, 651 (1985); see also Pls.’ Mot. at 17-20. As a result, they argue, the Government‘s conduct must be analyzed under the strict scrutiny standard.11 Pls.’ Mot. at 17-24. I agree.
A fundamental tenant of constitutional jurisprudence is that the First Amendment protects “both the right to speak freely and the right to refrain from speaking at all.” Wooley, 430 U.S. at 714. A speaker typically “has the autonomy to chоose the content of his own message.” Hurley, 515 U.S. at 573. And, in fact, “[f]or corporations as for individuals, the choice to speak includes within it the choice of what not to say.” Pac. Gas & Elec. Co. v. Pub. Utils. Comm‘n of Cal., 475 U.S. 1, 16 (1986) (plurality opinion). As plaintiffs so aptly stated, although “the Government may engage in [] advocacy using its own voice[,] it may not force others, such as Plaintiffs, to serve as its unwilling mouthpiece.” Reply in Supp. of Pls.’ Mot. (“Pls.’ Reply“), Nov. 18, 2011, at 1 [Dkt. # 42]; see Sorrell v. IMS Health, Inc., 564 U.S. 552, 570 (2011) (“The State can express [its] views through its own speech. But a State‘s failure to persuade does not allow it to hamstring the opposition. The State may not burden the speech of others in order to tilt public debate in a preferred direction.“). Thus, where a statute ” ‘mandates speech that a speaker would not otherwise make,’ that statute ‘necessarily alters the content of the speech.’ ” Entm‘t Software Ass‘n v. Blagojevich, 469 F.3d 641, 651 (7th Cir. 2006) (quoting Riley v. Nat‘l Fed‘n of the Blind of N.C., Inc., 487 U.S. 781, 795 (1988)). As the Supreme Court itself has noted, this type of compelled speech is “presumptively unconstitutional.” Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 830 (1995).
In the arena of compelled commercial speech, however, narrow exceptions do exist and allow the Government to require certain disclosures to protect consumers from “confusion or deception.” Zauderer, 471 U.S. at 651. Indeed, courts apply a lesser standard of scrutiny to this narrow category of compеlled speech through which the Government may require disclosure only of “purely factual and uncontroversial information.” Id. Even under this paradigm, however, compelled disclosures containing “purely factual and uncontroversial information” may still violate the First Amendment if they are “unjustified or unduly burdensome.” Id. Unfortunately for the defendants, the images here neither meet the Zauderer standard, nor are narrowly tailored to avoid an undue burden to the plaintiffs’ speech. How so?
First, after reviewing the evidence here it is clear that the Rule‘s graphic-image requirements are not the type of purely factual and uncontroversial disclosures that are reviewable under this less stringent standard.12 To the contrary, the graphic images here were neither designed to protect the consumer from confusion or deception, nor to increase consumer awareness of smoking risks; rather, they were crafted to evoke a strong emotional response calculated to provoke the viewer to quit or never start smoking. Indeed, a report by the Institute of Medicine—an
Not surprisingly the use of the graphic images accomplishes just that: an objective wholly apart from disseminating purely factual and uncontroversial information. That Dr. David Hammond—a researcher upon whom the Government relies—recommended that the graphic warnings should “elicit negative emotional reactions” to convince smokers to quit undercuts any argument that the images are purely factual. See David Hammond, Health Warnings Messages on Tobacco Products: A Review, 20 Tobacco Control 327, 331-32 (2011) (“Hammond Review“); Defs.’ Opp‘n at vi. Indeed, the FDA measured the efficacy of the graphic images by their “salience,” which the FDA defines in large part as a viewer‘s emotional reaction. See Compl. ¶ 58 (citing 76 Fed. Reg. 36,638-36,639).
Further, the graphic images are neither factual nor accurate. For example, the image of the body on an autopsy table suggests that smoking leads to autopsies; but the Government provides no support to show that autopsies are a common consequence of smoking. Indeed, it makes no attempt to do so. Instead, it contends that the image symbolizes that “smoking kills 443,000 Americans each year.” Defs.’ Opp‘n at 42. The image, however, does not provide that factual information. Similarly, the image of a man exhaling cigarette smoke through a tracheotomy hole in his throat is not being used to show a usual consequence of smoking. Instead, it is used to symbolize “the addictive nature of smoking“—a fact that is not accurately conveyed by the image. Id. at 37. Put simply, the Government fails to convey any factual information supported by evidence about the actual health consequences of smoking through its use of these graphic images.13
The images, coupled with the placement of the toll free number, do not “promote informed choice” but instead advocate to consumers that they should “QUIT NOW.” A telling example is the image depicting a man wearing a t-shirt that features a “no smoking” symbol and the words “I QUIT” next to the “1-800-QUIT-NOW” phone number. This image contains no factual information, and even the Government concedes this image “encourag[es] cessation.” Defs.’ Opp‘n at 43 (quoting 76 Fed. Reg. 36,656). Likewise, the Secretary and the Commissioner of the FDA (“the Commissioner“) have acknowledged that the
Rather than fit the Zauderer paradigm, “the disclosures mandated in this case are much more similar in form and function to those at issue in Blagojevich.” R.J. Reynolds, 823 F. Supp. 2d at 46. There, the Seventh Circuit refused to apply the Zauderer standard of scrutiny to a state law that required video game retailers to affix a four-square-inch sticker with the number “18” (representing age 18) on any game deemed “sexually explicit” under the statute. 469 F.3d at 643, 652. “Just as the Seventh Circuit recognized that a compelled video-game label based on what the state deеmed to be ‘sexually explicit’ was ‘far more opinion-based than the question of whether a particular chemical is within any given product,’ Blagojevich, 469 F.3d at 652 (referencing Sorrell), so too are the graphic images promulgated as part of the FDA‘s rule a more subjective vision of the horrors of tobacco addiction.” R.J. Reynolds, 823 F. Supp. 2d at 46. Indeed, like the stickers in Blagojevich, the graphic images “ultimately communicate[] a subjective and highly controversial message.” Blagojevich, 469 F.3d at 652. The Rule, therefore, does not fit into the Zauderer exception for purely factual and uncontroversial information. See Pac. Gas & Elec., 475 U.S. at 15 n. 12 (“Nothing in Zauderer suggests ... that the State is equally free to require corporations to carry the message of third parties, where the messages themselves are biasеd against or are expressly contrary to the corporation‘s views.“). Thus, these images must withstand the strict scrutiny analysis the Supreme Court imposes on Government regulations which compel commercial speech.
B. Analysis Under Strict Scrutiny
To withstand strict scrutiny, the Government carries the burden of demonstrating that the FDA‘s Rule is narrowly tailored to achieve a compelling government interest. See, e.g., A.N.S.W.E.R. Coal. v. Kempthorne, 537 F. Supp. 2d 183, 195 (D.D.C. 2008) (citing Boos v. Barry, 485 U.S. 312, 322 (1988) and Rosenberger, 515 U.S. at 829). Unfortunately for the Government, it fails to satisfy this burden.
First, although the Government contends that it has a compelling interest—“conveying to consumers generally, and adolescents in particular, the devastating consequences of smoking and nicotine аddiction,” see Defs.’ Opp‘n at 23—its “stated purpose does not seem to comport with the thrust of its arguments, or with the
As I noted previously, “the sheer size and display requirements for the graphic images are anything but narrowly tailored.” R.J. Reynolds, 823 F. Supp. 2d at 48. Under the Rule, plaintiffs are forced to act as the Government‘s mouthpiece by dedicating the top 50% of the front and back of all cigarette packages manufac-
Finally, with respect to the content of the graphic images, it is curious to note that plaintiffs have offered several alternatives that are easily less restrictive and burdensome for plaintiffs, yet would still allow the Government to educate the public on the health risks of smoking without unconstitutionally compelling speech. First, the Government could disseminate its anti-smoking message itself, for example, by increasing its anti-smoking advertisements or issuing additional statements in the press urging consumers to quit smoking or both. Pls.’ Mot. at 28. Although doing so might impose costs on the Government, see Defs.’ Opp‘n at 22, “[c]itizens may not be compelled to forgo their [First Amendment] rights because officials ... desire to save money.” Palmer v. Thompson, 403 U.S. 217, 226 (1971). Of course, by now it is clear that the Government‘s actual concern is not the potential for added cost as the FDA recently announced that it will be spending $600 million on a new—presumably believed to be effective—anti-smoking multimedia campaign. See Pls.’ Reply at 47. Second, the Government could change the display requirements. Specifically, the Government could reduce the space appropriated for the proposed “warnings” to 20% of the packaging or require “warnings” only on the front or back of the packaging. Pls.’ Mot. at 29-30. Third, the Government could change the content by selecting graphics that conveyed only purely factual and uncontroversial information rather than gruesome images designed to disgust the consumer. Id. at 30. Fourth, the Government could increase cigarette taxes. Id. at 29. And lastly, the Government could improve efforts to prevent the unlawful sale of cigarettes to minors. Id. Any one of these suggestions would be less restrictive than the Rule‘s current requirements. Unfortunately, because Congress did not consider the First Amendment implications of this legislation, it did not concern itself with how the regulations could be narrowly tailored to avoid unintentionally compelling commercial speech.
CONCLUSION
For all the foregoing reasons, plaintiffs’ Motion for Summary Judgment [Dkt. # 10] is GRANTED, and defendants’ Cross-Motion for Summary Judgment [Dkt. # 35] is DENIED. An order consistent with this decision is attached herewith.
Deborah R. COLE, Plaintiff, v. The BOEING COMPANY, Defendant.
Civil Action No. 11–1494 (RMC)
United States District Court, District of Columbia.
March 1, 2012.