And because the government loves taxing them.
Why would they do that, when they can allow the sale of cigarettes, tax the cigarettes, and then just not let us smoke them anywhere?
Seriously, all the government is doing here is what it’s been doing for 30 years now. Cigarettes are bad for you, but hey, knock yourself out. There’s nothing new or different (or wrong) about it.
:rolleyes:
Could we soon see a Virginia company selling “100% Virginia grown and processed” tobacco in stores in Virginia (sorry not available in NC) without the warnings, claiming that they are not engaged in interstate commerce since everything is from Virginia, all the processing is done in Virginia, and they are only selling within Virginia?
accidental post
IIRC the government rejected that logic when it came to locally produced medical marijuana, and said it still fell under the ICC. Heck, even a local hotel fell under the iCC for the purposes of racial desegregation.
I suppose that even if all of the tobacco was grown in Virginia, and all the workers were in Virginia, and all of the raw materials were purchased in Virginia they might start to have a case, but the web of national commerce is really easy to trace, and I’d bet it’s virtually impossible for any major undertaking like that these days to be 100% local, even if it’s a question of their suppliers having ties to other states in some way or another, and therefore the growing operation being tied to interstate commerce as well.
You can go all the way back to 1942’s Wickard v. Filburn, when the Supreme Court held that a farmer growing wheat for his own personal use, not for sale, was subject to the ICC.
Cigarettes are a unique product. When used ,even in small amounts, it has a harmful effect on your health . It is also habit forming. They can not be used safely. They also hurt people around the smoker.
Now they are even expensive.
Cigarettes are a unique product. When used ,even in small amounts, it has a harmful effect on your health . When used a lot, it diminishes your health and can kill you. It is also habit forming. They can not be used safely. They also hurt people around the smoker.
Now they are even expensive.
How can you have too many warnings about that?
A lot of issues here in one paragraph.
First, regarding the regulation of obscenity, the federal government is permitted to regulate “obscenity” because the U.S. Supreme Court has held obscenity is not protected by the 1st Amendment Free Speech Clause. Roth v. United States, 354 U.S. 476 (1957),* Miller v. California*, 413 U.S. 15 (1973). However, the federal government is not permitted to exercise its own discretion as to what is obscene and the Court, in Miller, articulated a test for determining what was obscene. Any material which does not satisfy the Miller test for obscenity will also fail to justify government censorship of the speech on the basis it is obscene.
Regarding television ads, the Court has held advertising for a product receives 1st Amendment protection. Central Hudson Gas & Electric Corp. v. Public Service Commission of New York 447 U.S. 557, (1980). Edenfield v. Fane, 113 S. Ct. 1792, (1993), Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976). Advertisements do not enjoy the same level of protection as other forms of speech, like political speech, but they are protected by the 1st Amendment and the government must satisfy the intermediate level of scurtiny to justify its regulation of an advertisement(s). The test was espoused in Central Hudson v. Public Service Commissin of New York, cited above, and is commonly referred to as the “Central Hudson test,” and I restate it in the next paragraph below.
The law regulating an advertisement is protected by the 1st Amendment so long as the advertisement concerns lawful activity and is not misleading. A law regulating a lawfu,l non-misleading advertistements must serve 1.) a substantial government interest (2. ) “the regulation directly
advances the governmental interest”; and (3) the governmental interest cannot “be served as well by a more limited restriction on commercial speech.”
Central Hudson & gas v. Public Service Commission of New York Any law which regulates an advertistement concerning lawful activity, and is not misleading, which does not satisfy the Central Hudson test unconstitutionally regulates advertisement.
Finally, your comment of it is “illegal to show cigarette ads on TV, despite the fact that they rather clearly constitute speech and not commerce in and of themselves.”, is a true statement, but it is the fact the advertisement does possess a commerce element to it which makes it different from “pure” speech. It is the presence of this commerce element inherent with advertisements which serves as the basis for giving advertisements lower levels of protection under the 1st Amendment as opposed to “pure” speech or political speech. Those cases I cited discusses this as well.
So, you essentially referred to examples and instances where the Court has historically held the government is prohibited from regulating speech in some area unless it passes some test, and in the absence of passing this test, then the speech is protected. Did you mean to reference examples which undermine your argument and strengthen my position, or was it done by accident?
Actually, it is no one may “falsely shouting fire” in a crowded theater. Schenk v. U.S. 249 U.S. 47 (1919). I am no longer amazed at the number of people who misquote one of the most famous lines in the Court’s history, perhaps Justice Holmes’ most famous statement in any opinion he composed.
My point here is to get you to understand the 1st Amendment free speech clause is a limitation upon Congress’ power to regulate commerce, and as a result, you cannot simply invoke Congress poewr to regulate interstate commerce and think this resolves the issue. The issue will be whether this law infringes upon free speech rights, not whether this is an exercise of congressional power under the commerce clause.
When talking about labeling of any product, consider what is factual and what is not necessarily fact.
Food, for example, is required to carry certain factual information regarding its content and nutritional value - so the consumer can know exactly what it is purchasing.
This is not true with tobacco. The Gov’t/FDA is trying (and already has, to some degree) to replace factual consumer information with information/images that are vague and not necessarily factual.
The 2009’s Family Smoking Prevention and Tobacco Control Act already has removed information from cigarette packing and advertising in that the tobacco co.s are no longer allowed to use terms like “lights.” The logic being it implies one type of cig is safer than another. The result is that the smoker no longer has any idea what they are purchasing. Yes, it’s a cigarette. And the gov’t stance is that all cigs are the same. But that is not true to the consumer. Different blends/formulations have differing tar and nicotine amounts - but there is no way for the consumer to know this from that.
This is akin to forbidding Coca-Cola from labeling diet products - because soda is unhealthy regardless of whether there is real sugar in it or not - and the consumer has no idea which type of cola contains sugar and which contains a sugar substitute. How does this protect the consumer? Well because then everyone will know that no brand/type/formulation of soda is any more or less healthy than any other. Yeah, big help.
Warning labels on cigs currently indicate factual information - this product MAY cause cancer, or have other effects, etc. There’s no guarantee that a smoker will suffer any ill effects. Graphic images are implications at best and are not necessarily factual.
This could set a very dangerous precedent because it could lead to any/all consumer packing information to no longer be factual and would be subject to the whims of the gov’t.
This type of legislation is not good for anyone.
Irrelevant. We have already established that freedom of speech is not absolute when it comes to commercial products and/or speech in the public domain. And as warning labels on cigarettes already have the force of roughly half a century of precedent and tradition behind them, I still see no actual distinction in terms of kind between written and pictorial warning labels. I also notice that nobody stepping up to the plate for a round of Lawyerball has yet addressed why pictures are somehow a completely different class than written warning labels. I’m hoping for something that doesn’t boil down to “well… one is a picture.”
Yes, thank you for arguing my point, with a citation none the less. The packaging of a commodity is part of how it is advertised. In fact, it is the tobacco companies themselves who would be the first to argue that packaging is an essential part of how their product is marketed. There is a substantial government interest in reducing the number of smokers. Reducing the number of smokers directly advances the government’s interest. And all current warning labels are less forceful, and most likely thereby less effective, than the combination of text and pictorial warning labels.
Thank you for arguing my point yet again. If an advertisement is not “pure” speech, then surely the packaging of the commercial product itself is even less an act of “pure” speech. The tobacco companies are free to use legal advertising to say “smoking is awesome, yay for smoking!”. They are not free to construct the packing for their commercial product however they wish, and they have not been free to do so for roughly half a century since Surgeon General warnings were placed on them.
And as you have now pointed out, freedom of speech is not absolute where commerce is concerned. Obscenity can be limited and curtailed, advertising can be regulated when it’s in the interest of public policy, and the commercial nature of a package of cigarettes makes it distinct from “pure” speech.
No, and luckily I didn’t. Dodged a bullet there.
You have got to be kidding me. You are really quibbling over this, you actually thought that I was saying that if there is a raging inferno, it’s illegal to warn other theater goers upon pain of law, and not the fact that shouting “fire!” in a crowded theater is bad if, ya know, there’s no fire?
Lawyerball. Gotta love it.
It’s a tough case because the next step could be replacing all labelling with “DO NOT BUY THIS PRODUCT”. There comes the point where a easily “gettable” legal product cannot be regulated to the point of making the providers argue agaisnt their own product.
Food will be next and more and more we will have subjective opinions on what is dangerous and how much.
Cigarrettes are, basically impossible to use safely, but you can make the same case for Doritos or double cheese bacon burgers.
Your argument above is flawed, because we can assume, arguendo, packaging is not “press” but this still leaves us with the question of whether the information on the packaging, like labels, constitutes as speech? Labels on products, in which the labels provide information to consumers, is speech. So, the more the more important, for our purposes, is whether this compelled speech by the government is permissible by the 1st Amendment?
What, if any, have your objections been to half a century of warning labels placed on cigarette packs?
What, if anything, do you see as the substantive difference now that does not boil down to “well… it’s a picture?”
The point you make above, of asserting a requirement of a pictorial is no different than wording, when we are discussing lawfully permissible labels, I will have to address later.
My initial point to you was to denounce the notion you labored under, which was merely invoking Congress’ power to regulate intersate commerce resolved the issue.
Whether I “proved” your points, as you allege, remains to be seen. The point I certainly did not prove was your erroneous notion of invoking Congress’ power to regulate commerce legally justifies this nascent label requirement.
Yet again, as that didn’t actually happen, your reliance on it remains less than persuasive. Unless, of course, your argument is invalid because you were riding on a unicorn while talking with an elf, in which case, okay, game on.
It’s a good hint that your points all supported and echoed exactly what I said, even while you tried to claim that they somehow were against my argument. Funny that, as soon as their actual impact on the argument under analysis was pointed out, we have to wait to see.
It was proven by the fact that the unicorn you were riding got into a fight with a gryphon, but then both of them got eaten by a dragon, and so I win.
Yes?
By the way, care to answer any time soon what the substance and history of your objections to half a century of warning labels were, and what the substance and rationale for your current objection is besides an argument that boils down to “well… picture”.
It did actually happen, regardless of whether you choose to deny it.
Here is your unicorn. You previously said, "How does that not fall under the interstate commerce clause? You’re free to say whatever you want as per the 1st amendment, but if you sell a product then you can have that product regulated by the federal government.
You invoked Congress’ power to regulate interstate commerce, have the producte regulated by the federal government, as a justification for the nascent requirement of picture labels. I responded by stating Congress’ power to regulate interstate commerce is limited by the Free Speech Clause of the 1st Amendment, and consequently, merely invoking the commerce clause power of Congress does not resolve the issue.
You invoked Congress’ power to regulate commerce as a justification for the requirement of a picture label and I merely claimed invoking the commerce clause power was not sufficient to justify this new label requirement, because the 1st Amendment Free Speech Clause is a limitation upon Congress’ power to regulate commerce. The remarks I made on this point were correct and “against” your argument.
I have no idea what you are blabbing about above.
Here’s my question: why is this a First Amendment case at all?
The First Amendment goes something like this:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
“abridge” means to shorten and curtail. The right of the tobacco companies to speak isn’t being curtailed here–rather, they are being compelled to speak more than they want to, which isn’t the same thing by a long shot. Are there precedents anywhere that suggest that the government is prohibited by first amendment jurisprudence from compelling speech under certain limited and well-defined circumstances?
Further, there are plenty of cases where the Federal Government, for one reason or another, forces certain products to bear certain warnings or information–primarily health and nutrition information. These pictures seem to me to be of the same kind as Drug Facts or Nutrition Facts labeling.
Yes, and your pet dinosaur ate my entire clutch of phoenyx eggs, no matter how stridently you deny it! Naturally, you’re engaging in some rather blatant cherrypicking. Even in the post that you cherrypicked from, you deliberately cut out the fact that we’ve already accepted, for half a century now, that we can indeed put warning labels on cigarette packs. Not only did you accept that as true, you went on to argue in support of my point when you posted the fact that the Central Hudson and Gas verdict directly supported the fact that the government can indeed regulate commercial speech.
Of course, you’ve conveniently neglected to quote all the other things I said, but your massive, deliberate cherrypicking in just that one postshould serve to let readers know what you’re leaving out. And why. Just like it’s clear why you quoted it outside a quote box and outside a linked quote box.
Just like it’s clear why you quoted but still have not addressed what your objections have been, all along, to half a century of warning labels placed on cigarette packs or what your objection is now other than “Hrm… pictures?”
Is that before or after your pixy army invaded my cerberus lair and made off with all their philosopher’s stones?
It’s odd that you’re so wildly mischaracterizing what actually happened, because to remind you, not only did you previously understand that my argument contained more than the pat statement that the ICC is at issue,but you managed to respond to some of my additional points and claimed that the additional points I had made, which at the time you admitted were not simply “the iCC sez it, so there!”, somehow supported your argument. Strangely, when it was shown that you were wrong and all of your arguments actually supported what I’d said all along, not only were they no longer probative but now we had to wait and see and then, lo and behold, my arguments vanished altogether and were replaced with “Teh Uber ICC, also I ride dinosaurs!”
Curiouser and curiouser.
Your confusion here is quite strange. Yet again, when you posted arguments that were in support of my claims, they were in fact, in support. When I claimed that free speech is not absolute when it is in the public sphere, you provided an argument proving that free speech is not absolute in the public sphere. When I claimed that the ICC did in fact correctly apply to advertising (which even the cigarette companies will say that packaging is part and parcel of), you provided a citation showing that the ICC did in fact correctly apply to advertising. When I claimed that the ICC validly allowed congress to regulate advertisement/packaging, you responded that, yes, congress can indeed do that because it’s not “pure” speech.
Then you claimed that despite the fact that you had supported literally every single one of my arguments that you’d set out to debunk, I was still wrong.
I’m shocked. Shocked!
Found any cites yet or can you at least tell us about your history of opposition to 50 years worth of precedent showing that the government can, in fact, place warnings on cigarette packs? Do you, in fact, have any argument more substantive against the current labels than “well… you see… and then… because… and… um… pictures?”
Or would you prefer to misstate my argument again a few times?
Perhaps another round of triumphantly pointing out that you can indeed say that there is a fire in a crowded theater if, yep, there is in fact a fire there?
Some, yes.
Off the top of my head, government violates the First Amendment when it requires a person to display a state license plate that bears the state motto “Live Free or Die.” It violates the First Amendment when it requires a child in public school to recite the Pledge of Allegiance. When a state bar uses compelled dues from lawyers to finance ideological pursuits like lobbying for or against public policy laws, it violates the First Amendment. A mushroom grower can’t be compelled to contribute funds to a government program designed to advertise and inform the public about mushrooms.
Cites on request.
Naw, you have no reason to make shit up. Also, all of your answers make sense, because there’s no rational reason to compel speech in any of those cases IMHO.
I’d be very interested in a cite of any kind that extended that sort of jurisprudence to warning labels, MSDS warnings, those codes on the sides of chemical trucks, or basically anything where there exists a specific risk involving the health and safety of the population in general.
Mind you, I think that the policy in general is basically counterproductive, and I’d be happier with a mandated size of picture rather than “50% of package size” as I think the only basis for that would be legibility. I just don’t see it as unconstitutional or particularly out of line compared to extant policy.