At a press conference to announce the new graphic warning labels on cigarettes in 2010, the U.S. Department of Health and Human Services (DHHS) and the Food and Drug Administration (FDA) asserted that the new graphic warning labels would play a major role in preventing youth from starting to smoke and helping current smokers to quit.
FDA Commissioner Margaret Hamburg stated that one major purpose of the graphic warning labels is to "encourage current smokers to quit."
She also noted, quite explicitly, that the government's intention is for cigarette packages to become anti-smoking billboards, emphasizing that: "every single pack of cigarettes in our country will in effect become a mini-billboard...".
The FDA left no doubt that the primary purpose of the graphic warning labels is not merely to provide factual warnings, but to "help strengthen the resolve of current smokers who want to break the habit." Later, the Agency reiterated this point, noting that the purpose of the warning labels is to "help strengthen the ability and commitment of current smokers who are trying to quit."
The Assistant Secretary of Health - Dr. Howard Koh - noted that "countries that combine these graphic health warnings with resources for smokers to access such as a phone number or a web site show more efficacy in terms of reaching smokers and helping them make a decision to quit." The FDA later added the 1-800 quit line number to the graphic warning labels.
In the question session, Commissioner Hamburg noted that one of the major considerations of the Agency is to determine what type of images "have the most impact on people."
The Rest of the Story
Rather than treating the new warning labels with the modest amount of attention they deserve, as this is a marginal intervention that will have minimal impact on the smoking epidemic, the FDA and DHHS insisted on making a huge spectacle of this intervention, turning it into a political propaganda-fest by continually emphasizing how these warning labels are going to play a huge role in ending cigarette smoking as we know it in our nation, and how the next generation of kids is not going to become addicted to cigarettes because they will be scared off by these scary pictures.
Unfortunately, by creating this propaganda show, the FDA and DHHS inadvertently ended up shooting their own legal case for these warning labels in the foot. Why? Because they made it quite clear, with incontrovertible evidence, and in their own words, that the primary purpose of the graphic warning labels is not merely to provide factual information to warn consumers about the health effects of smoking, but to generate an "impact" on smokers and encouraging them to quit smoking.
Moreover, the FDA admitted that the purpose of the regulation is to turn cigarette packages into "mini-billboards" (these are the exact words used by the FDA Commissioner) to help the government spread its anti-smoking message.
While I completely agree with the government's anti-smoking message, I also understand that the First Amendment does not allow the government to require cigarette companies to run advertising campaigns for the government on their cigarette packages, compelling the companies to encourage their own customers not to purchase their products. This is a form of compelled speech that simply does not pass constitutional muster.
In essence, the FDA and DHHS undermined their own legal argument for the warning labels by over-hyping and sensationalizing the likely impact of this marginal - at best - intervention. Had they simply stated that the warning labels were intended to warn smokers more effectively than the current labels that cigarettes and hazardous and addictive, and refrained from all of the propaganda about ending the tobacco epidemic and protecting America's children, then they would not have harmed their legal case.
The rest of the story is that in their zeal to score a political victory and make the public think that the graphic warning labels will play a major role in helping to end the smoking epidemic, the FDA and DHHS seriously harmed their legal case for the warning labels, creating strong evidence that the purpose of the labels is to compel tobacco companies to spread the government's smoking cessation message by turning the packs into government mini-billboards, precisely what the First Amendment does not allow warning labels to do.