More on the DC Circuit decision declaring FDA's tobacco warnings unconstitutional

By Greg Beck

As Brian Wolfman noted, the DC Circuit this morning held that the FDA's required tobacco warnings violate the First Amendment. In a 2-1 decision, the court rejected the FDA's argument that the graphic images were subject to a lower standard of review because they communicated impotant information to consumers, holding that the information conveyed by the warnings was not "purely factual and uncontroversial."

The court wrote:

[M]any of the images chosen by FDA could be misinterpreted by consumers. For example, the image of a man smoking through a tracheotomy hole might be misinterpreted as suggesting that such a procedure is a common consequence of smoking—a more logical interpretation than FDA’s contention that it symbolizes “the addictive nature of cigarettes,” which requires significant extrapolation on the part of the consumers. Id. at 36,649. Moreover, the graphic warnings are not “purely” factual because—as FDA tacitly admits—they are primarily intended to evoke an emotional response, or, at most, shock the viewer into retaining the information in the text warning.

Subjecting the warnings to intermediate scrutiny, the court held that the government had failed to prove that the warnings would reduce smoking.

The silver lining to the decision is that the court did not apply strict scrutiny, as the district court did. The court's application of intermediate scrutiny makes the decision a very fact-based one. That being said, the court gave little credit to the facts in the record--in particular, the overwhelming evidence from other countries that have adopted similar graphic warnings showing that such warnings are effective both at informing consumers and reducing smoking. If the DC Circuit were correct that the FDA's evidentiary showing doesn't satisfy the intermediate scrutiny standard here, it's unclear how the government could ever satisfy that standard, especially given that it could take years for the warnings to achieve a measurable effect.

In any event, the fact that the court struck down an act of Congress and, in doing so, acknowledged disagreement with other circuits on the standard of scrutiny to apply, means that the Supreme Court will almost certainly have the last word on the question.