This statement is why I mentioned a slippery slope.
The compelling argument that the government has put forth in mandating nutritional labels, and warning labels on cigarette packages specifically, was to provide the consumer with the data they need to make an informed choice about the product and it’s use. In other words, that the government’s (public’s) purpose trumped the free speech rights of the private commercial enterprise or owner.
In other words: the free speech rights of the maker/seller of a legal product are still in existance, and may only be trumped with a compelling public/government reason.
Also, I would like to point out that (IMO) just because the government can prove that they have a legitimate claim to a public interest in compelling speech by a non-government person/enitity doesn’t mean that that govermental power is without limits. Once the mandated speech (label) has met it’s purpose, the governments powers stop.
(I am not a lawyer, but is my argument loosely based on a “level of scrutiny” approach?)
Are you arguing that the text labels fail in the purpose of providing the warnings that the product is potentially unsafe with long time use?
Not exactly, no. To put a finer point on it, I’d say that text labels will (IMO) not be as effective as pictoral representations for the purpose of providing warnings that the product is potentially unsafe with long term use.
To be glib, I could point out that illiterate people can not read warning labels. To be a bit more straight forward, I might point out that text is too easy to disregard or skip entirely (TLDR, after all, and one of the warnings doesn’t even apply to those without ovaries or a pregnant partner). It’s also something of an academic concept for someone to say “oh yes, I know the word emphysema” or to know “yes, cancer is a bad thing I’d rather not have it”, and it’s another entirely to understand just what cancer or emphysema look like and do to a person’s body.
Actually, research to date has demonstrated increased awareness of smoking-related health risks via graphic warnings printed on tobacco products, not simply emotional response. The latter is what the tobacco industry relied upon for years by using imagery of healthy, happy smokers in TV and print ads.
The link (by an anti-smoking org) does not establish that emotionalism is not the reason why pictoral ads are more effective. I assume they are more effective precisely because of the emotional impact.
What is the compelling reason for the government to decide to encourage the users to not use a perfectly legal product? Remember, this isn’t a cosmetic question, but one about where the government recinds or trumps one amendment within the bill of rights. Since the amendment couldn’t possibly cover all conceivable instances of the use of free speech, some subjective judgements (I think these are called “level of scrutiny”) will naturally arise (and has, in this case).
If smoking is unsafe [enough], shouldn’t the government ban it outright?
Should doctors be forced to show pictures of botched medical procedures to their prospective patients?
Regarding the “factuality” of pictures: Suppose that a tobacco company found a lifelong smoker whose lungs looked perfectly clean. They then displayed an X-ray picture of the smoker’s healthy appearing lungs next to the federally mandated diseased lung picture. Both images are indeed “factual” inasmuch as they represent an actual picture. Would there be a problem with this?
I would not make that assumption without consulting the list of references cited in the link. The references include a couple of studies I was previously aware of that note increased awareness of smoking risks thanks to graphic imagery. I don’t discount the likelihood of such images providing a jolt to one’s lizard brain that encourages the cerebral cortices to sit up and take notice.
Governments including ours have long regulated legal products to enhance the health and safety of citizens. This covers lots of consumer products, including drugs with therapeutic and recreational aspects.
We tried that with booze between 1920-1933. Didn’t work too well. And since nicotine is so addicting, we’d probably have to triple the size of the DEA to even make a dent in the illegal tobacco trade.
Poor analogy. Smoking-related morbidity and mortality is not a function of “botched” smoking. There’s no correct way to do it safely.
In terms of evidence-based outcomes, “healthy lungs” in lifetime smokers are not representative. I am not a radiologist, but in terms of pathology it’d be next to impossible to find photos/photomicrographs of healthy-appearing lung tissue in, say a smoker with a 100 pack-year history (i.e. a person who smoked 2 packs a day for 50 years).
Besides, with all those competing graphic images, there would scarcely be any room for the name of the product on the cigarette pack.
Nope. Just like I said, the government has a compelling reason to force speech based on the ability to effectively convey a warning. We’ve even accepted, (including the tobacco companies) for a quarter of a century now that the government can use cigarette packs themselves to post messages that advocate quitting smoking.
I do not see a clear bright line whether or not one is more emotional than another.
I don’t really see where whether or not the content of a message appeals to emotion is even a point to be considered.
The government has a valid and compelling interest in not having it’s citizen’s die from self-inflicted diseases. Why does it matter if it achieves that goal with an emotionally resonant message?
I mean, if the government couldn’t use emotional messages, then surely there was a lot of improper propaganda at use during many (if not most or all) of our armed conflicts, wasn’t there?
Is there any case law at all that says the government can’t appeal to emotions?
I don’t think so. The only governing precedent I can find is that the government CAN compel YOU to make truthful statements in the public interest, and CANNOT compel you to make statements that boil down to advertising. It really does boil down to where the courts find the imagery falls.
This, incidentally, is why the propaganda statement isn’t really relevant–the issue isn’t what the government can or can’t say, it’s what the government can or can’t force a private citizen or corporation to say.
Maybe, maybe not. But people are fucking biased. They don’t like cigarettes, they don’t like smokers; that’s why they’re doing this. What about pictures of tortured animals on meat packaging and cosmetic products? Pictures of starving children in McDonald’s restaurants? Pictures of overworked children from foreign countries in Walmarts? Everyone eats meat. Everyone uses soap, deodorant, makeup, etc. Everyone stuffs their faces with fast food. No one cares where they shop. But because not a lot of people smoke, and if you don’t smoke you probably hate smokers, the government’s going to butt in and start censoring (pretty much) cigarette packs? It’s just ridiculous. The difference between this and all the examples I gave is that smokers are (for the most part) only hurting themselves. If I want to cut my damn arm off I’ll do it. It’s my business. But just by eating a freaking ham sandwich you’re funding an industry that literally tortures animals that can be as intelligent as 3-year-old kids. And ruining your own lungs is bad? People need to THINK about what they’re saying. None of us are perfect.
This “censorship” has been going on for a long time, what with print warnings and various restrictions on advertising of tobacco products. The use of images is not a sudden attempt to muzzle the poor tobacco companies or to deny smokers their cigarettes. You’ll still be able to buy them.
If large numbers of smokers start doing this we may have to require knife manufacturers to print images of hacked-off limbs on their packaging.
How about this: I AM a(n occasional) smoker, and I don’t give a rats about the warnings, because A) smoking is one of the few vices that actually CAN bother other people and/or harm them in a measurable way, and B) most smokers that I personally encounter are jerks about A.
Now if only we got these warning labels on cheap sports cars with bad exhaust noise reduction.
Everyone can continue to talk in great detail about what they think the law should be.
If anyone is interested in actual court results, however, they may be interested to know that U.S. District Judge Richard Leon found that those opposing the FDA’s graphic images were likely to succeed on the merits, and therefore granted an injunction against the FDA, forbidding the FDA from enforcing the requirement.
The government is appealing the decision. Nothing is final yet. However, since this is an actual result from an actual court, I thought that some readers might be interested. Those to whom actual court results are mere arcana may of course ignore this post.
That’s the link to the actual discussion, and, oddly enough, he doesn’t use Bricker’s primary argument as the actual argument in the case. He uses the fact that the warnings cannot be excessive and evaluates the intent behind the images to indicate that they do not fit the previous law. His claims about them being nonfactual were based on one being a cartoon and digital manipulation. He repeatedly asserted something about pictures saying more than they did, but he never backed that up–just like Bricker didn’t.
He also makes a pretty dumb argument that the government shouldn’t have been testing to see which pictures were more effective, and that doing so somehow gave their motives. Why he did that when he had direct statements to fall back on, I have no idea. Nor do I understand him using certain bits of rhetoric that almost certainly identify him as either a smoker or smoking sympathizer. (For example, not only did he use the term “anti-smoking propaganda” but also added and exclamation point indicating that he was intending that to be some horrible thing.)
He also does not spend enough time explaining why the earlier Kentucky court ruling was not relevant to the case, focusing instead on Zauderer. This seems odd to me, but apparently even “the Government” did not push the issue.
Another thing I notice is that he seems to argue that even textual warnings are unconstitutional if sufficiently large, but then continues on as if we are only discussing images throughout the rest of the decision. I guess it doesn’t matter, but it seems odd.
Finally, I want to note that my previous comment in this case was to Bricker making what was obviously an appeal to ethics, not legality. I still have no problem with the government being able to completely and totally regulate the packaging on products, and cannot see how the Constitution forbids it. I also cannot pretend to understand how the government can prohibit you from selling something (like several illegal drugs) and not be able to regulate how you are allowed to sell it. Heck, it seems that, as a practical matter, the government could just threaten to make nicotine a Schedule I substance unless the tobacco companies accede to their demands.
I don’t understand the distinction. A picture of a guy smoking through his trachea hole absolutely increases consumer awareness of smoking risks. It may be true that it provokes a strong emotional response but if that potential consumer chooses not to start smoking because of that picture, how can it not be said that that consumer wasn’t doing so because he became aware of the risks of smoking?
