Judge: Graphic Cigarette Warning Labels Violate Right To Free Speech

Remember those graphic, sometimes gory, cigarette warning labels the FDA came up with? Well, a U.S. District Judge has sided with the tobacco companies and ruled that the warnings violate cigarette-makers’ right to free speech.

“The government has failed to carry both its burden of demonstrating a compelling interest and its burden of demonstrating that the rule is narrowly tailored to achieve a constitutionally permissible form of compelled commercial speech,” wrote the judge, who also ruled that the labels, which would occupy the top half of the front and back of each pack of smokes, are too large. “Unfortunately, because Congress did not consider the First Amendment implications of this legislation, it did not concern itself with how the regulations could be narrowly tailored to avoid unintentionally compelling commercial speech.”

He suggested that the government doesn’t need the graphic labels because they already have other ways to curb smoking, like raising taxes.

Tobacco health labels unconstitutional: U.S. judge [Reuters]


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  1. failurate says:

    Any chance these will become collector items? Does each carton score someone a complete set?

    • failurate says:

      And… I’ve got a chest suture card and a hole in the neck card that I am willing to trade for a rotting teeth or confused skinhead guy card. I’ll even go two for one.

    • Clyde Barrow says:

      Last time I visited, Canada does this so big deal.


      “The government has failed to carry both its burden of demonstrating a compelling interest and its burden of demonstrating that the rule is narrowly tailored to achieve a constitutionally permissible form of compelled commercial speech,” wrote the judge,

      YEAH RIGHT. In other words, Me thinks the judge is brown nosing someone hard.

    • Jawaka says:

      I didn’t think that there were ever actually used so were they ever any made to be collector items?

  2. TuxthePenguin says:

    I’m sorry, but how much money have we spent on education that smoking is bad for you? At what point are we throwing good money after bad?

    • StarKillerX says:

      Well the politicians need these programs so they can show they oppose tobacco, otherwise people might realize that between all the tax dollars the politicians get from tobacco sales and the politican contributions that politicians are as pro-tobacco as the cigarette makers.

    • Bionic Data Drop says:

      And how many schools have been built by tobacco tax dollars? The money that states for tobacco education is nothing compared to the taxes they collect from the sales.

    • magnetic says:

      It’s working. People don’t take up smoking nearly as much as they did. So it’s kind of throwing good money after better money.

      • Charmander says:

        True, but is it because of photographs on cigarette packages, or because a) cigarette taxes make smoking a very expensive habit and 2) many laws are passed banning smoking from certain places/public areas, etc.?

    • smo0 says:

      Well you’d think, by now, everyone has the message.
      People who are going to smoke, will – people who don’t, won’t.

      I haven’t met anyone who took up smoking after 30…. it’s mostly people who start in their early teens.
      Just keep the education with the rest of “education” – health class….

    • Jawaka says:

      I don’t think that there’s anything wrong with education. These are the things that should be discussed in a school health class IMO along with sex education, nutrition, etc…

  3. Warren - aka The Piddler on the Roof says:

    And let’s check this judge’s bank account and…

    Yup, that’s what I thought.

    • Billy says:

      I’m sorry. This is lame.

      Judges get ragged on all the time. Here’s one that’s actually interested in upholding the constitution…and you’re mad at that?

      • Nyxalinth says:

        I’m calling BS, too. I don’t see anything wrong with the warnings. The warnings are just saying “this shit will fuck you over”. No one is saying the cigarette companies can’t say what they want, unless it’s those false claims of improving your health and the like, because that would be false information and the FTC would have something to say about it.

        Really, what can they say? “Smoke up, little Billy, and you’ll be big and strong!”?

        • Billy says:

          The problem with the warnings is explained in the article: “The government has failed to carry both its burden of demonstrating a compelling interest and its burden of demonstrating that the rule is narrowly tailored to achieve a constitutionally permissible form of compelled commercial speech.”

          You may personally think that there’s nothing wrong with the warnings. That’s irrelevant.

          And the case IS about not letting the cigarette companies not getting to say what they want: the more space reserved for government warnings is space where the cigarette companies aren’t getting to say what they want.

          And I have no argument that cigarette companies can’t lie about their product. That’s not what this is about, though.

      • Warren - aka The Piddler on the Roof says:

        To the corporate-owned government, the Constitution is like a religion: they twist it to suit their purposes, whatever those may be. All you have to read is ‘…sided with tobacco companies…’ to know what’s going on.

        The only thing lame is slapping a freedom-of-speech tag on this.

        • Billy says:

          Said by somebody who doesn’t really know the issues surrounding the government limitations on commercial speech.

        • Admiral_John says:

          As soon as you throw “corporate-owned government” into your post you immediately lose any credibility your argument may have had (which in this case, was none). Just because a federal judge sides in a way you don’t agree with doesn’t mean their being paid off.

          If you feel you could do a better job at interpreting the law and the Constitution, go to law school and try to be appointed to the bench. Until then, I’ll take the opinion of the judge over the legality of something over yours.

          • Warren - aka The Piddler on the Roof says:

            “As soon as you throw “corporate-owned government” into your post you immediately lose any credibility your argument may have had (which in this case, was none).”

            Right, because we the people are in charge. Sure. Pull on this one, it plays jingle bells.

    • Jawaka says:

      What did you find there?

      And actually, how did you check his back account?


  4. rockelscorcho says:

    Smoking! Helping to maintain population size since the 18th century!

    • Lethe says:

      Nah. It’s no good. It generally kills off the already-old, but doesn’t do anything about the breeders.

    • CubeRat says:

      Plus, smoking helps the economy. Look at all those health care dollars spent! All the jobs, building of hospitals, clinics, and hospices; the doctors, nurses, aids, orderlies, EMTs etc. So sad, but so very true.

      Full disclosure: all but two of my uncles died of smoking related illnesses. The two that never smoked are still living.

      • NotEd says:

        It sure as hell kept my father in his job at the National Cancer Institute at NIH through most of my childhood.
        Think of all those poor researchers and doctors only having to deal with naturally occuring cancers. Oh the humanity!

  5. StarKillerX says:

    The government has made more money off smokers then any cigarette company could ever dream but continue to come up with ways to mess with them.

    I quit smoking about 12 years ago but still I think the government has gone crazy with all the anti-smoking craziness. if they are that bad BAN THEM and get it over with, and then figure out what to go after to replace all the tax dollars you loose.

    Don’t get me wrong, I don’t support or opposing banning cigarettes but would support a politician who moved to ban then simply because they would be one of the few not talking out of both sides of their mouths on the issue.

    • The Twilight Clone says:

      “The government has made more money off smokers then any cigarette company could …”

      Do you realize how ridiculous this statement is? And how nothing could be further from the truth?

      Also, it’s thAn, not thEn.

      • StarKillerX says:

        Let’s cover a few facts shall we,

        1) In most of the country (I don’t say all as I haven’t seen the numbers from every state) various taxes and fees make up over 60% of the cost of a pack of cigarette.
        2) 90% of cigarette sales in 2009 were done by 5 companies with Phillip Morris leading the pack (no pun intended) with 49.2% of the sales.

        So, even if we round down the taxes/fees per pack to 50% you need to remember that the other 50% of the cost is split between several companies but even if Phillip Morris was 50% of that total that would mean they would only get 25% of the total sales $, which would be half of what various levels of government would recieve (and that does not take into account the store, the distributor or anyone else’s cut they recieve, not to mention the actual manufacturing cost.)

    • Princesssookeh says:

      I do. I shouldn’t have to breath that stuff in just because THEY want to smoke. they can get their tobacco fix some other way.

  6. GMFish says:

    Heck, I’m with the judge. Raise taxes on cigarettes!!!

  7. Happy Tinfoil Cat says:

    Well, then, lets just ban tobacco altogether. Put it on the same list as marijuana since this drug causes far more damage and death. Problem solved.

    BTW, a photo is speech just as much as teensy unreadable disclaimers are.

    • AngryK9 says:

      If the tobacco industry wasn’t a multi-billion dollar industry and responsible for lining many a politician’s pockets, they probably would ban it.

      • TuxthePenguin says:

        Not to mention the millions that they employee as well… good luck with that bout of political suicide.

    • StarKillerX says:

      While I don’t really care if they ban them or not I would vote for a politician who fought to ban then since at least aren’t paying lip service to the issue by claiming to be anti-smoking while loving all the tax money generated by tobacco sales.

    • Cat says:

      Because prohibition always turns out so well… oh, wait…

    • ARP says:

      I disagree. Putting a small-ish warning label on smokes is no different than content, nutrition, or warning labels on food products. But I think requiring a graphic picture that takes up a good percentage of the packaging does make it qualitatively different.

    • cspschofield says:

      Well, that would certainly move things along nicely. We could go straight into full-bore Roaring 20’s mode. Smoking would be firmly established as a glamorous Outlaw activity. And just as the archetype of the Wonderful Drunk hung on well past the repeal of Prohibition, the Glamorous image of the Rebellious Smoker would carry on long after the ban had collapsed. At a guess, I’d expect the Hispanic community to reap the benefits of being the go-to suppliers (like the Italians were in the 20’s). And we’d get to watch the fun as the various Native American tribes that revere Tobacco as a sacrament sued to be exempt…and reaped the benefits too.

      And then maybe sometime around 2060 we could go back and start separating the science from the hysteria and make some rational decisions about cigarettes.

    • Jawaka says:

      He has a point.

      If the product is dangerous and is killing people then why is it any different than cocaine or crack? Why make laws banning one but not the other?

    • RocheCoach says:

      You don’t really get to slap your warning on someone else’s property and call it “free speech.” That’s not how the first amendment works.

  8. full.tang.halo says:

    Remember kids, corporations are people too…

  9. xanadustc says:

    No that I agree with graphic images for anti-smoking (or anti-obesity), it does appear that a payoff was involved in this description….lets look at this….

    If I am understanding this correctly, the people with the graphic images can not exercise their right to free speech because saying it violates the right to free speech on behalf of tobacco?


    • catskyfire says:

      It’s that it was required by the government. Individuals can still display images as they choose. Tobacco made a very valid point when it said that it was the only industry being required to heavily discourage purchase and use of its legal product. The little disclaimers are required on quite a few things (alcohol being one of the others), but no others were going to have to have the pictures.

    • Cerne says:

      Are you illiterate or just stupid The ruling and the constitution clearly say that forcing someone to say something is the same as denying them the right to speak.

    • RocheCoach says:

      You can’t force someone to say something, and say, “Oh, everything’s cool, the guy forcing the company to speak is just expressing his right to free speech.”

  10. Tim says:

    Okay, I’ve got a bone to pick here.

    Many people, mostly Republicans, have focused lately on the rights of entities, often at the expense of the rights of people. For example, if a corporation objects to something on religious grounds, it is a violation of the corporation’s religious freedom. You can’t restrict a corporation’s political spending, because it restricts the corporation’s freedom of speech.

    And you can’t make cigarette companies put certain things on packets of highly-regulated substances that have been proven to kill, because it violates the corporation’s freedom of speech.

    The constitution does not guarantee rights to corporations. In fact, the constitution doesn’t even guarantee freedom of enterprise. But now, corporations have many of the rights that individuals have, while having none of the responsibilities. For example, if a corporation kills someone, do you throw it in jail? No.

    There was a time in which state legislatures had to grant charters when people wanted to create limited liability corporations, because it is such a powerful entity. Why did that stop?

    • Billy says:

      SCOTUS didn’t pull Citizens United out of thin air. “Corporate personhood” has been around since the 1800s. That doesn’t mean that a corporation has all of the same rights as people, but it also means that corporations don’t have NONE.

      The idea that a rule should be narrowly tailored to achieve a constitutionally permissible form of compelled commercial speech certainly isn’t a new idea.

      • voogru says:

        Take a corporation.

        Remove all people.

        Can it do fraud? No.
        Can it kill people? No.
        Can it do anything bad? No.

        The people in the corporation can, and they can be held liable. But the corporation itself can’t.

        What’s next? When someone uses a gun to kill someone, we put the gun itself on trial?

        • Kuri says:

          The people in corporation CAN be held liable, but how often are they.

        • Billy says:

          The corporation can not act without its members, but that doesn’t mean that the corporation can’t suffer because of the acts done on behalf of the corporation. Obviously, if you take away its members, there can hardly be any liability to the corp (b/c it can’t act without members)…but the same thing would happen if you took away a person’s ability to act, too.

          IN any even, to say that a corp can be sued, have its licenses taken away, investigated, fined, etc. just doesn’t state the truth of the matter.

          A corp probably wouldn’t be able to be held responsible for something like murder anyway: anybody who murders someone probably isn’t doing it in furtherance of the corporation.

      • Unclaoshi says:

        1800’s is correct but its some what deceiving because it wasnt until the 1880’s that they were granted this. When the country was founded person hood of corporations wasnt an issue, the founding fathers were not pro corporations. When corporations were created they were only permitted to exist 20 or 30 years and could only deal in one commodity, could not hold stock in other companies, and their property holdings were limited to what they needed to accomplish their business goals, and it was also a criminal offense for them to make campaign contributions. Also if a corporation was found to be acting not in the public interest they had their chartership revoked. They had very few rights. The real kicker is when corporations got a foot hold was with Dartmouth College v. Woodward, their chartership was granted in 1769, by the British. The person hood case was Santa Clara County v. Southern Pacific Railroad.

        Maybe if corporations were still held to these standards its most likely businesses wouldnt have gotten too big to fail and not screw people because they could be shut down in a heart beat.

    • partofme says:

      First, can you elaborate on the phrase, “…at the expense of the rights of the people”?

      Second, can you Constitutionally distinguish between newspaper corporations, 503(c) religious corporations, political parties, universities, and tobacco corporations with regard to which assemblies of the people deserve first amendment protection? Assembly is more basic than enterprise. Even if these corporations were not allowed freedom of enterprise, these assemblies of the people are afforded freedom of speech, religion, etc.

      There are a few ways we handle each of the above categories slightly differently… and we handle individuals slightly differently. We probably shouldn’t list off rights and responsibilities in each case. But even if we did, you’d still need another step to argue that different assemblies of the people should have different levels of Constitutional protection. All of those other little differences are statutory matters and have essentially nothing to do with Constitutional matters.

  11. Freightshaker says:

    These warning pictures have been in Canada since December 2000. They are really not effective if you ask me.
    The best way to curb smoking is to raise the price (it’s now something like $10.50 a pack/25).
    But let’s be completely honest here, the government does NOT want you to quit, it’s too lucrative for them. 1) they tax to the max, 2) you die young and don’t get to collect old age pension.

  12. smartmuffin says:

    Allowing this to go through would be a dangerous precedent. The government is worried about the types of images it may have to put on voting ballots and tax return forms!

  13. itsdotcom says:

    Let’s face it, people who smoke full well know that it harms themselves and those around them. They just don’t care, that’s all.

    • cspschofield says:

      “people who smoke full well know that it harms themselves and those around them. “

      The cold facts are that the “proof” that secondhand smoke harms people is largely cooked numbers, assertions from authority, and bushwa. If you read carefully enough, you learn that the EPA said, in the report from their Study of “environmental tobacco smoke”, that the highest concentration of smoke they expected to encounter in the real world would amount to smoking two-fifths of a cigarette per day of exposure. Other studies of actual levels of exposure have found even lower levels.

      Other people’s smoke is annoying, unpleasant, even nasty. With rare exceptions, it has no measurable effect on your health. Which can’t be said of, say, very loud music or the noise levels commonly encountered in “big box” stores like Best Buy.

      (Some Christmas, assuming that BB hasn’t gone tits up by then, I’m going to complain to OSHA about the noise levels in Best Buy during any Christmas shopping weekend. I’m sure that it’s above safe levels.)

      • human_shield says:

        Okay, but you still stink. Sad thing is, if I set off a stink bomb in public, people would have a serious problem with that…but you can just puff away.

        • Overman says:

          Tell that to all the tarts out there wearing scented body spray!

        • cspschofield says:

          A lot of things stink. Stink is an annoyance, not a lets-get-the-government-involved health issue. If the Crusade would admit that they don’t have jack in the way of proof, then owners could decide whether to allow people to smoke in their bars, clubs, etc. Since, supposedly (why are we believing the statistics put out by these people, BTW?) non-smokers are a huge majority, there should be relatively few smoking-permitted establishments. As matters stand, the Crusade is happily lying its head off for the chance to bully people “for their own good”. There’s a word for that. A rather pungent word.

      • kiwihead says:

        “the highest concentration of smoke they expected to encounter in the real world would amount to smoking two-fifths of a cigarette per day”
        So you think it’s OK for certain idiots to force people to smoke half a cigarette every day? Fuck you. How about we force you to smoke half a crack rock every day because there are millions of crack smokers?

        Nobody wants to be forced into being drugged. It is not ok to smoke around me.

    • human_shield says:

      Let’s not forget that they are ALL litterbugs. They ALL throw their butts out the window of the car, on the ground while standing around. EVERY smoker also throws his trash on the ground like a jerk. And obviously someone will respond saying, “oh, but I don’t do that”…and they are lying.

      • Kuri says:

        Ugh, I can’t say how often I’m cleaning cigarette butts off of my lawn near the road.

      • HogwartsProfessor says:

        I NEVER did that! I never smoked in my car and always put butts (wet) in the trash or in an ashtray receptacle. I hated and still hate when people throw butts everywhere. And I am not a liar! >:(

      • LanMan04 says:

        Well, the butts are made of cotton and paper, it’s not like they last very long…

  14. YouDidWhatNow? says:

    Ummm…so are we to presume that the tobacco companies *wanted* to put the current Surgeon General’s warning on their products?

    First Amendment rights have already been overruled in the interest of the public health for this explicit purpose.

    At any rate, the pictures would have done no good. The % drop in cigarette smoking in Canada since they added such stuff to their cigs is essentially the same as the % drop in the US – without the graphic pics. Ergo…they do no good anyway.

    I’ve said it before and I’ll say it again…smokers would still buy cigs even if each pack came nailed to a dead badger.

    • Kaleey says:

      I agree. I would expect that the majority of smokers these days are NOT people who started recently (in the past 1-10 years), but the die-hards who have been smoking for 20+ years.

      Those folks won’t stop until a health scare smacks them in the face, and even then, maybe not. My future father-in-law was one of them, until he had to have open heart surgery about 5 years ago.

  15. yabdor says:

    Why not levy yet another tobacco tax to fund an independent, gubamnt sponsered graphic label campaign? Personally I thought the TV commercials with the fellow singing in that monotone voice, sucking cigarette smoke through a hole in his neck, fairly compelling. That and an honest admission that nicotine is an amphetamine and no different addictionwise than getting hooked on reds. Did you know that tobacco naturally sequesters Polonium? No shit.

  16. Nyxalinth says:

    “The government has failed to carry both its burden of demonstrating a compelling interest and its burden of demonstrating that the rule is narrowly tailored to achieve a constitutionally permissible form of compelled commercial speech,” wrote the judge

    Sounds more to me like the judge ‘failed to have a sense of ethics and failed to not take bribes from the cigarette companies”.

    • Billy says:

      There is lots of jurisprudence about compelled commercial speech and the constitutional limits of it. The judge’s opinion falls in line with that jurisprudence.

      Otherwise the judge would run the risk of being called an “activist judge”.

  17. giax says:

    Why not add the same type of imaging of obesity related health issues for all food items containing over 1000 kcal per serving/portion?

  18. framitz says:

    I don’t care what they put on the packages, I don’t see them.

    Nobody in my family smokes, we are becoming absolutely ‘sickup and fed’ with all the horrific anti-smoking ‘public service’ ads.

    I’ve got to the point where, if one of those things with the person choking to death, comes on, the TV goes OFF and Netflix comes up.

  19. Cerne says:

    It’s always a nice surprise when a judge sides with the people against the ever increasing powers of the state.

    • Tim says:

      You mean when a judge sides with corporations?

      Look, in a democracy, the state IS the people. The people elect their government and can also take them out of office. The people have no reason to be afraid of the government, because they are the government.

      Don’t like something the government did? Change it.

      • Cerne says:

        That is one of the most naive things I have ever read.

        By your logic their should be no bill of rights and no balancing of powers.

  20. ancientone567 says:

    People are ignorant sometimes. I know because I was a smoker until 5+ years ago. Let them get sick and die. They were warned it would kill them and they did nothing. BTW I HATE TOBACCO COMPANIES! Screw each and every one of you for profiting off people’s health.

    • flychinook says:

      If whacking oneself with a hammer were somehow enjoyable, and a lot of people were doing it, I still wouldn’t hate the hammer manufacturers. I would hate the idiots whacking themselves with hammers.

  21. human_shield says:

    These are gross. I don’t smoke, but I don’t see what the point of this is. Smokers know what can happen when they smoke. They already HAVE the information, they just don’t care.

  22. shepd says:

    They have these in Canada. I worked at a gas station once. Smokers enjoyed the pictures. Many would ask for packs with specific pictures. Most popular were the “limp cigarette” ones…

  23. Telekinesis123 says:

    The admiralty jurisdiction courts, where the judges try to uphold the non existent free speech rights of corporations, and work explicitly to deny the only things that actually have them – natural persons.

  24. B2BigAl says:

    If people want to smoke, let them smoke! Putting grotesque pictures on the package isn’t a deterrent, it’s just annoying. What’s next, pictures of cottage cheese thighs and clogged arteries on my burger wrapper? An amputated foot on my big gulp?

  25. Maltboy wanders aimlessly through the Uncanny Valley says:

    Here’s a few more ideas they should try:

    Pictures of mutilated fetuses on abortion clinics
    Pictures of burning twin towers on gas pumps
    Pictures of cancerous livers on alcoholic beverages
    Pictures of really ridiculously fat people an anything containing fat or sugar
    Pictures of this OWS protester on college loan application forms

  26. FrugalFreak says:

    Way to go Judge!

  27. kgb says:

    So why isn’t anyone putting drunk driving victims on beer bottles? How about some squashed up bodies on a sign on the side of cars? The list could go on forever………………