Do the new tobacco warnings violate 1st Amendment rights?

[BigT]

@curioushat

Well, since the state regulated tobacco, it may place generally any regulation that it wants on tobacco products.

That’s my position too, but it seems the law does not agree. I honestly don’t get how it can’t be, as you’d think the same ideas such as how they regulate roads and schools would apply: they technically have no legal ability to regulate these, but they hold the purse strings. They also hold the purse strings to the tobacco industry in the form of taxes.

(If you wanted even more direct comparisons, you could even raise the tax rate anyways, and then have the government give back in subsidies, but only if you follow their rules.)

I just don’t get how one is allowed but the other is not.

BTW, I also have no problem with emotional images–I don’t necessarily think that emotions are not a part of truth. If the truth is that, say, smoking causes lung cancer, then I don’t see a picture of lung cancer, no matter how emotionally made, as being untrue. If anything, an emotional response indicates that even more truth is being imparted as the truth is that you’d be very emotional if you got lung cancer.

In my mind, even a dry fact is propaganda–it’s specifically removing the emotional component, and thus implies that one should not get emotional about the information contained within. Being clinical is precisely how one attempts to restrict the emotions inherent in piece of information. Facts without emotions do not exist in the real world.

[sisu]

Just an aussie here but when the government here decided that we should get plain packaging for smokes the tobacco cartel decided to run the freedom of speech thing here, sucked in we don’t have an inherent freedom of speech!

[NotreDame05]

@Nars_Glinley

I guess I wouldn’t get “smoking is addictive” message from seeing a picture of someone smoking through a trach tube. If I were a smoker (I’m not), I’d probably think “Cool. I can still smoke after they take out my trachea.”

I took a similar view as your own after seeing the picture. However, when I had my wife examine and comment upon it she construed the message as smoking is so addictive people will continue to smoke after having a tracheotomy, which I think is a very reasonable interpretation of the picture and is reasonably conveyed by the picture.

[Bricker]

@Snowboarder_Bo

You keep falling back on this part that I bolded, but for some reason have voiced no problem with written warnings that say “may cause”.

What, in your opinion, is the difference between something that may happen, and something that is “a possible outcome, but not a certain or even likely outcome”?

The picture presents the possible outcome as a certain outcome. The text says “may,” which correctly identifies the possibility as opposed to the certainty.

[BigT]

@Bricker

The picture presents the possible outcome as a certain outcome. The text says “may,” which correctly identifies the possibility as opposed to the certainty.

And that’s something I had not entertained–that the pictures were more definite. Would putting some large text above it that says “This may happen to you if you smoke” make it better? (Assuming they also get rid of the cartoons and the other specific images you objected to?")

[Bricker]

@BigT

And that’s something I had not entertained–that the pictures were more definite. Would putting some large text above it that says “This may happen to you if you smoke” make it better? (Assuming they also get rid of the cartoons and the other specific images you objected to?")

Yes, it would certainly go a long way towards making it acceptable, in my view.

[Askance]

Appeals court OKs FDA rule requiring graphic warnings.

the Cincinnati-based U.S. Court of Appeals for the 6th Circuit upheld the bulk of the FDA’S new regulatory framework, including the new graphic warnings. The ruling in large part affirmed a Kentucky federal judge’s 2010 decision in the case.
…
The appeals court panel’s two-judge majority disagreed with the companies on the label requirement, finding that the fact that the specific images might trigger disgust does not make the requirement unconstitutional. The majority did note that it was only addressing the constitutionality of the statute on its face, and not the specific images that the FDA introduced after the suit was filed.

I was unaware that the tobacco companies’ argument was:

The companies accused the government of forcing them to disseminate an anti-smoking message in order to stigmatize and embarrass already-informed consumers.

That’s pretty thin grounds on which to assert unconstitutionality, I have to say.

[Bricker]

@Askance

Appeals court OKs FDA rule requiring graphic warnings.

I was unaware that the tobacco companies’ argument was:

That’s pretty thin grounds on which to assert unconstitutionality, I have to say.

Also from your link:

The majority did note that it was only addressing the constitutionality of the statute on its face, and not the specific images that the FDA introduced after the suit was filed.

What this means is that the 6th Circuit said that graphic images, as opposed to text, are not automatically violative of the First Amendment, but it didn’t examine the specific images the way the DC court did:

The district court’s summary-judgment decision in January 2010 was issued over ten months before the FDA proposed any specific graphic images and over seventeen months before the FDA settled on the final nine images. The district court did not—indeed, could not—evaluate the constitutionality of the specific images the FDA chose because those images did not yet exist. Indeed, they did not even exist when the last appellate brief was filed in this Court in October 2010. Without any specific graphic images to challenge, Plaintiffs’ argument is and must necessarily be that the graphic warning requirement on its face violates the First Amendment.
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Addressing the specific images would require us to reach a constitutional question that was neither briefed nor argued and that turns on facts not available, litigated, or considered by the district court, all of which would fly in the face of the restraint we should exercise during judicial review.

Had I been sitting on the Sixth Circuit bench, I would have concurred. The statute on its face is valid. As applied, though, using the images I objected to above, it becomes unconstitutional.