AAF Government Report

September 13, 2012

Clark Rector Jr., Executive Vice President – Government Affairs

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Court Affirms Protections for Commercial Speech

The U.S. Court of Appeals for the D.C. Circuit has ruled that the proposed Food and Drug Administration rule to require large graphic warnings in tobacco advertising and packaging violates First Amendment protections for commercial speech. The 2-1 ruling prohibits the FDA from mandating that 20% of advertising and 50% of the front and back of packaging be used as a “mini-billboard” to present the government’s anti-smoking message.

The Court noted that the First Amendment does allow – in certain narrow circumstances – the government to require factual and non-controversial information to be displayed. However, the Court said the proposed warnings are not purely factual because they are “primarily intended to evoke an emotional response, or at most, shock the viewer into retaining the information in the text[.]” It goes on to hold “many of the images do not convey any warning information at all, much less an accurate statement about cigarettes.”

Getting to the bottom line of what is required under the First Amendment, the majority opinion stated, the “FDA has not provided a shred of evidence—much less the ‘substantial evidence’ required by the APA—showing that the graphic warnings will ‘directly advance’ its interest in reducing the number of Americans who smoke.”

This opinion is important not just for tobacco, but for any other potentially disfavored product or service.

AAF joined with our sister association the ANA to file an amicus brief in the case defending the free speech rights for advertising and commercial speakers.

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