“Camels Agree with your Throat” and Other Lies: Why Graphic Warnings are Necessary to Prevent Consumer Deception

The government’s latest attempt to protect consumers from the perils of tobacco use is in jeopardy. In 2009, Congress enacted the Family Smoking Prevention and Tobacco Control Act, which requires cigarette advertisements and packages to bear nine new textual health warnings and gives the FDA authority to regulate tobacco products. In 2011, in compliance with the Act, the FDA issued a regulation, known as the graphic warning requirement, which mandates that a color graphic image accompany each of the nine textual warning statements. The graphic warning requirement now faces challenges from the tobacco industry, and the ambiguities current standards present divide courts as to the constitutionality of the warnings. Part I introduces the Family Smoking Prevention and Tobacco Control Act and the graphic warning requirement. Part II provides an overview of the protections the First Amendment affords commercial speech, specifically tobacco advertisements and labels. Part III sets out the framework for the levels of scrutiny the Supreme Court has applied to compelled and commercial speech. Part IV explains the current circuit split and analyzes the courts’ treatment of the issue. The deceptive nature of tobacco advertisements, the impact of tobacco advertising, and the effectiveness of the new warnings are described in Part V. In conclusion, this Note emphasizes the deceptive nature of past and present tobacco advertisements and urges the Court to further develop compelled commercial speech doctrine to better enable mandated disclosures of health hazards to pass constitutional muster. * J.D. expected, May 2014, University of Florida Levin College of Law; B.S., 2011, Troy University. To Mom, Dad, and Will—thank you for your constant encouragement, patience, and willingness to listen. A special thank you to the editors of the Florida Law Review for their hard work and dedication. 1 English: “Camels Agree with your Throat” and Other Lies: Why Graphic Warni Published by UF Law Scholarship Repository, 2013 2056 FLORIDA LAW REVIEW [Vol. 65 INTRODUCTION 2057 I. GRAPHIC WARNINGS: AN ATTEMPT TO PREVENT DECEPTION 2059 A. The Family Smoking Prevention and Tobacco Control Act 2059 B. Graphic Warning Requirement 2059 C. FDA Findings 2061 D. Early Judicial Responses to Tobacco Legislation 2062 II. TOBACCO ADVERTISEMENTS AND LABELS ARE ENTITLED TO FIRST AMENDMENT PROTECTION 2063 A. Tobacco Advertisements and Labels are Forms of Commercial Speech 2063 B. Commercial Speech is Protected Speech, but Not Without Exceptions 2063 C. The First Amendment Protects Compelled Speech 2064 III. LEVELS OF SCRUTINY APPLIED TO COMPELLED AND COMMERCIAL SPEECH 2065 A. Origins of Scrutiny 2065 B. Wooley v. Maynard and Strict Scrutiny 2066 C. Central Hudson and Intermediate Scrutiny 2068 D. Zauderer and the Rational Basis Standard 2069 IV. THE CIRCUIT SPLIT 2071 A. Overview 2071 B. Discount Tobacco City & Lottery, Inc. v. United States 2072 1. Determining the Standard of Review 2072 2. Application of Zauderer 2073 C. R.J. Reynolds Tobacco Co. v. Food and Drug Administration 2074 1. Determining the Standard of Review 2074 2. Application of Central Hudson 2075 D. Closing the Gap 2076 V. THE IMPACT OF TOBACCO ADVERTISEMENTS AND THE EFFECTIVENESS OF GRAPHIC WARNINGS 2079 A. “Just What the Doctor Ordered”: A Look at the Ads 2079 B. Impact of Tobacco Advertisements 2082 2 Florida Law Review, Vol. 65, Iss. 6 [2013], Art. 9 http://scholarship.law.ufl.edu/flr/vol65/iss6/9 2013] WHY GRAPHIC WARNINGS ARE NECESSARY TO PREVENT CONSUMER DECEPTION 2057 C. Effectiveness of Graphic Warnings 2083 CONCLUSION 2085