Tobacco Companies Must Punch Selves in Face, Court Orders

By Christopher Robertson

The Washington Post covers a new order by DC district court judge Gladys Kessler, arising out of an old RICO case brought by the federal government, requiring that the tobacco companies publish advertisements to confess publicly that they previously lied about the safety of smoking and manipulated cigarettes to make them more addictive.  I have pulled the district court order and posted it here, along with this appendix.  The order provides the exact language of the mandated advertisements, but no analysis.  Below the fold, I trace the convoluted path this case and a related case have taken through the compelled speech doctrine around the First Amendment, all thanks to a single judge on the Court of Appeals.

This decision is actually not new, but is an implementation of a decision made six years ago.  Here is the most recent opinion from a panel (consisting of judges Sentelle, Brown, & Silberman) of the D.C. Circuit, holding that the enactment of the Tobacco Control Act of 2009, which gave the FDA authority to regulate the tobacco companies, did not make the RICO case moot.  Thus, the opinion by Judge Brown sent the case back to Judge Kessler to get on with the companies’ self-flagellation.  Although Judge Brown’s opinion acknowledged that the remedy would involve speech — the order “to issue ‘corrective statements’ in various media outlets about the health effects of smoking” — this opinion has no discussion of the First Amendment issues raised by such an order.

Given the 2006 law of the case and the 2012 go-ahead by the Circuit, Judge Kessler’s new order is thus not surprising.  But it is particularly interesting in the light of the decision of a different Brown panel (with judges Rogers & Randolph) this summer in another case, holding that the new FDA regulations, which required that the companies place particularly graphic warnings on cigarette packages, were “compelled speech” that violated the companies’ First Amendment rights.  There, Judge Brown wrote that, “Any attempt by the government either to compel individuals to express certain views, or to subsidize speech to which they object,  is subject to strict scrutiny.”

What’s the difference?  In one of the many trips the RICO case took to the D.C. Circuit, in 2009 another Brown panel (per curiam, with judges Sentelle & Tatel) held that the corrective statements sanction survived First Amendment scrutiny, as long as the statements were “purely factual and uncontroversial information,” which is distinct from the emotionally-charged (though factually accurate) photos that the FDA was trying to impose on the cigarette packages in 2012.

To improve the salience of their messages, companies often use emotional appeals when selling their products (think: bathtubs-in-a-field-of-flowers advertisements for Viagra).  I wonder if we will see this same distinction asserted against regulators who seek to constrain such emotional appeals, in order to facilitate more rational decision making by consumers.  It is odd to suppose that emotional appeals get more First Amendment protection than factual assertions.

This entry was posted in Christopher Robertson, FDA, First Amendment, Tobacco by crobertson. Bookmark the permalink.

About crobertson

Christopher Robertson is a professor at the James E. Rogers College of Law, University of Arizona, and affiliated faculty with the Petrie Flom Center for Health Care Policy, Bioethics and Biotechnology at Harvard. Robertson also leads the Regulatory Science program, a partnership with the Arizona Health Sciences Center and the Critical Path Institute. Professor Robertson's research focuses on how the law can improve decisions by individuals and institutions -- attending to informational limits, conflicting interests, and cognitive biases, especially in the domain of healthcare. Blending legal, philosophical, and empirical methods, Robertson's work has been published in the New England Journal of Medicine, New York University Law Review, Cornell Law Review, Emory Law Journal, and the Journal of Empirical Legal Studies. He has received research support from the Robert Wood Johnson Foundation, and runs the Law and Behavior Research Lab at the University of Arizona. Robertson graduated magna cum laude from Harvard Law School, where he also served as a Petrie Flom fellow and lecturer. He earned a doctorate in Philosophy at Washington University in St. Louis, where he also taught bioethics. For 2013-2014, he was a visiting professor at Harvard Law School, and will visit at NYU School of Law in 2016-2017. Robertson's legal practice has focused on complex litigation involving medical and scientific disputes.