Monday, November 21, 2011

Anti-Smoking Researcher Criticizes Ruling on Graphic Warning Labels

In a commentary on the UCSF Center for Tobacco Control Research & Education web site, Professor Stan Glantz criticizes Judge Leon's ruling, in which the D.C. district court issued a preliminary injunction against the implementation of the FDA's graphic cigarette warning labels.

The basis of Dr. Glantz' criticism of the decision is that the imposition of the warning labels is justified because they "will certainly reduce smoking." He calls this a "public health justification" for the warning labels and chastises Judge Leon for his "blithe disregard for public health."

The central point of Dr. Glantz' argument is as follows: "Accomplishing the goal of protecting public health requires providing warning labels that will affect behavior (preventing people from starting to smoke or convincing them to quit), something that Judge Leon asserts goes beyond “providing objective information” into the forbidden (political) realm of “advocacy.” If one takes Judge Leon’s position to its logical conclusion, the only warning labels that would be constitutionally permitted would be ones that would not stimulate a behavior change (since those would not be “advocating” for anything)."

The Rest of the Story

Unfortunately, Dr. Glantz' argument is flawed. He misinterprets Judge Leon's ruling. The Court did not hold that the graphic cigarette warning labels are unconstitutional because they would stimulate a behavior change. Instead, what the Court ruled was that the graphic warning labels go beyond the provision of simply factual and uncontroversial information and are therefore subject to a higher level of scrutiny. And under that higher level of scrutiny, the warning labels violate the tobacco company's First Amendment rights because they are much broader than necessary to advance the government's interest of informing smokers about the health effects of cigarettes.

Dr. Glantz argues that under Judge Leon's logic, the only warning labels that would be allowed are ones which do not stimulate a behavior change (i.e., quitting smoking). This is not the case. Any warning label that construes factual and uncontroversial information would be allowed, regardless of its effects on consumer behavior.

For example, if the FDA chose to require a warning that said: "Cigarettes contain radioactive polonium-210" and the FDA had conducted formative research suggesting that such a factual warning would result in 25% of smokers quitting, such a warning would still be allowable under Leon's logic. As long as the warning is factual and uncontroversial, then it is not subject to strict scrutiny and would be allowable, even if it covers half of the cigarette pack.

The primary flaw in Glantz' argument is that it is not the effect of the warning label that makes it unconstitutional, it is the nature of the warning label. Regardless of how many people will quit smoking because of it, a warning label that is purely factual is permitted.

Where the FDA's mandated warnings cross the line (into requiring stricter scrutiny under the Court's holding in Zauderer [Zauderer v. Office of Disciplinary Counsel for Sup. Ct. of Ohio, 471 U.S. 626,651 (1985)] is in their failure to stick to factual and uncontroversial information, and instead, to directly and primarily attempt to get consumers to quit smoking. For example, the requirement that the smoking quitline number be prominently displayed on the package is, according to Leon, evidence that the purpose of the warning labels is to directly promote smoking cessation, not just to warn smokers of the health effects of cigarettes. And further, "it is abundantly clear from viewing these images that the emotional response they were crafted to induce is calculated to provoke the viewer to quit, or never to start, smoking: an objective wholly apart from disseminating purely factual and uncontroversial information."

While one could make an argument to counter the Court's ruling, such an argument would have to provide a rationale for either: (1) why the cigarette warning labels are not subject to strict scrutiny; or (2) why the cigarette warning labels can survive a strict scrutiny analysis. Dr. Glantz' argument fails to address either of these.

Because public health regulations must adhere to the Constitution, it is not as simple as arguing that the graphic cigarette warning labels are justified because they will certainly reduce smoking. The standard that the courts must use in determining whether the required warnings violate the cigarette companies' First Amendment rights is not simply whether they will advance the government's interest in protecting or improving the public's health. Instead, the question is first, to what level of scrutiny is this regulation subject and second, does the regulation pass such scrutiny?

If Judge Leon is wrong, it is not because of a "blithe disregard for public health." He could be wrong because of a blithe misinterpretation of Zauderer or a flawed assessment of the narrowness of the warning labels under Central Hudson. But the fact that his ruling blocks implementation of a regulation that would decrease smoking rates is not due to any failure of the court to consider the impact of the regulation on the public's health. In fact, Leon's consideration of the public health effects of the regulation played a role in his decision (he accepted the FDA's own analysis showing that there was no statistically significant predicted reduction in smoking).

Under Glantz' argument, we could and should be requiring graphic warning labels on all unhealthy consumer products -- warnings that directly implore consumers not to use those products. McDonalds could be required to post disgusting pictures of people with diseases caused by obesity at the point of purchase. Beer bottles could be required to include the phone number of Alcoholics Anonymous. My beloved Vienna Fingers could be required to include a graphic depiction of diseases related to increased fat intake.

There needs to be some limit on the degree to which the government can interfere with the free speech of companies, especially when those companies are being required to make statements which directly implore their consumers not to use those products. While my personal opinion is that the courts have been overly generous in granting First Amendment protection to corporations, I would never go so far as to argue that compulsion of speech by corporations is always justified if that speech would advance the public's health. This is, however, precisely the argument that Dr. Glantz is making when he asserts that the graphic warning labels are justified because they will certainly reduce smoking.

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