THE FOOD AND DRUG ADMINISTRATION announced last year that harsh new labels, large and graphic, would soon have to cover half of the front and back of all cigarette packages and at least 20 percent of the space in all tobacco advertising. Included in each label would be a blunt warning -- "Smoking can kill you," for example, or "Tobacco smoke can harm your children" -- plus a hard-hitting color image. Among the grisly pictures approved by the Food and Drug Administration: ravaged lungs; a corpse with an autopsy scar down its chest; a man smoking through a tracheotomy hole in his throat; a diseased mouth with discolored teeth and cancerous lesions; and a woman sobbing with grief. Displayed on every image as well would be the toll-free number of the FDA's smoking quit line, 1-800-QUIT-NOW.
The explicit labels, which Congress authorized in the Family Smoking Prevention and Tobacco Control Act of 2009, were supposed to be in place by next September. Last week, US District Judge Richard Leon wisely said no.
Most of the new warning labels approved by the Food and Drug Administration were quite graphic, and intended to provoke an emotional reaction.
The FDA's gruesome new labels are not designed to provide consumers with useful information about the hazards of smoking. After 45 years of mandatory Surgeon General's warnings, every non-comatose American knows perfectly well that cigarettes are a noxious health risk. That's why the share of Americans who are occasional smokers has fallen to an all-time low of 19.3 percent, or less than 1 in 5 -- a far cry from the more than 42 percent who were smokers in 1965. No one, not even Big Tobacco, disputes Washington's right to require cigarette makers to disclose pertinent facts about their product's dangers. Those disclosures, it's clear, have been effective.
So why the shrill new labels? Not to inform Americans, but to indoctrinate them. To "grab people by the lapels," as NPR put it last summer, "and be the visual equivalent of someone yelling: 'Stop smoking!'"
Indeed, the FDA released a video describing the required new labels as "bold and powerful messages," and FDA Commissioner Margaret Hamburg told reporters that with the new warnings in place, "every single pack of cigarettes in our country will in effect become a mini-billboard." At a White House press briefing, Health and Human Services Secretary Kathleen Sebelius said that the new regulations would amount to "rebranding" cigarette packs, transforming them to convey the message that "smoking is gross."
But "smoking is gross" is opinion, not fact. Millions of Americans -- including me -- may share that opinion, but under the Constitution the government has no power to compel anyone to express it. Requiring vendors to post accurate information, the First Amendment allows; forcing them to promote the FDA's anti-tobacco ideology it forbids.
"The line between the constitutionally permissible dissemination of factual information and the impermissible expropriation of a company's advertising space for Government advocacy can be frustratingly blurry," acknowledged Judge Leon. But "here -- where these emotion-provoking images are coupled with text [exhorting] consumers to call the phone number '1-800-QUIT' -- the line seems quite clear."
In a memorable 1977 decision, the US Supreme Court ruled in favor of New Hampshire resident George Maynard, who had covered up the state motto "Live Free or Die" on his automobile license plates. Under the Constitution, the court held in Wooley v. Maynard, he could not be punished for doing so. Americans cannot be made to "use their private property as a 'mobile billboard' for the State's ideological message."
So in gloating that her agency's strident new warnings were intended to convert every pack of cigarettes into an anti-smoking "mini-billboard," the FDA commissioner was -- presumably inadvertently -- articulating precisely the goal that Wooley disallows.
Time and again the courts have made clear that compelled speech is as repugnant to the Bill of Rights as prohibited speech. Reasonable people can disagree over the point at which prudent consumer or public-health protections turn into patronizing nanny-state officiousness. They can disagree over whether urging Americans not to smoke -- or not to eat junk food or watch violent movies or drink too much wine -- is a wise use of government influence, time, and money.
But even the wisest policy must be constitutional. The FDA can rent billboards from sea to shining sea and fill them with the ghastliest smoking-is-gross messages it can dream up. What it cannot do is order tobacco companies to use their own products -- their own lawful products -- to advertise the government's anti-smoking agenda. If the
(Jeff Jacoby is a columnist for The Boston Globe).
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