The Family Smoking Prevention and Tobacco Control Act (FSPTCA) instructed the FDA to issue regulations requiring cigarette packaging to contain graphics depicting the negative consequences of smoking. After holding hearings on its proposed regulation, the FDA issued final rules, which required the top half of all cigarette packs to depict the adverse effects of smoking. The FDA’s chosen images were graphic and jarring: a corpse after an autopsy, a smoker’s damaged lung, and a man exhaling smoke out of a hole in his neck, among others. The rule also required packages to include written warnings (“WARNING: Smoking causes cancer) and the phone number for an antismoking hotline, “1-800-QUIT-NOW.” 

Tobacco companies filed suit to challenge the FDA regulation, claiming the rule violated the First Amendment by requiring them to speak against their will. The FDA argued it was just educating the public with factual information. (cont next page)

Issue: Could the FDA compel tobacco companies to put disgusting and emotionally charged warning labels on their products?

Argument for the FDA: Cigarettes are the deadliest product sold in America, and one of the most addictive. The tobacco industry has a history of deceiving customers—particularly the young and uneducated—about these risks. We are simply ending this history of deception by requiring companies to disclose factual and uncontroversial information. Smokers have obviously not been deterred by the current text-only warnings, so these powerful images are the obvious next step in trying to influence them. Because the warnings are powerful does not make them a violation of the First Amendment. Nor does the Constitution prohibit us from requiring lethal and addictive products to carry informative warning labels. Moreover, Congress instructed us to proceed with these requirements so we are obligated to do so. 

Argument for Tobacco Companies: Your honors, look at these pictures. These awful images do not educate or protect consumers from deception—they just scare them into quitting. The FDA is treating every single pack of cigarettes as a mini-billboard for an emotionally charged antismoking agenda. The pictures are neither factual nor accurate: They symbolize the bad effects of smoking, which is something very different from providing factual information. Rather than educating and promoting informed choice, the FDA is simply trying to disgust consumers so that they will “QUIT NOW.” Advocating that the public should not purchase a legal product is not the same as educating consumers. If it wants to promote an antismoking message, the government should do so through advertising or increased cigarette taxes, not by making tobacco companies speak.

Holding: Judgment for the Tobacco Companies. The court vacated the graphic warning requirements and remanded to the agency.

Questions:

1. What does it mean to remand a case?

2. Why was this case remanded to the agency instead of to the lower court?