Photo by Tomasz Sienicki

Interview with Matthew L. Myers: the First Amendment and Commercial Speech in Tobacco Control

Matthew L. Myers is President of the Campaign for Tobacco-Free Kids.  Over the last 25 years, Mr. Myers has participated in virtually every major United States tobacco-related legislative effort and has worked with state tobacco prevention advocates and officials around the country.  Mr. Myers began his tobacco control work in 1980 when he joined the Federal Trade Commission and was responsible for the agency’s tobacco-related activity.  In 1989, Mr. Myers received the prestigious Surgeon General’s Medallion from Dr. C. Everett Koop for contributions to the public health of the nation.  In 1996, he received the Smokefree America Award as the lawyer who had made the greatest contribution to tobacco-control efforts in the United States.  Mr. Myers was named by President Clinton in 2000 to co-chair a Presidential Commission to develop a proposal to both address the economic problems being experienced by tobacco farmers and their communities and at the same time promote the public health through a reduction in tobacco use.  Under Mr. Myers’ leadership the Campaign for Tobacco-Free Kids led the effort that resulted in 2009 in the U.S. Food and Drug Administration being given authority over the manufacture, marketing and sale of tobacco products, including a requirement that cigarette packages carry graphic health warnings covering the top 50% of the front and back of all cigarette packages.  (Excerpted from tobaccofreekids.org)

MCF

Regarding graphic warning labels and the advertisement of tobacco, could you explain how the First Amendment pertains to corporations?

MM

People often forget that First Amendment protection of commercial speech is relatively recent.  Until the 1970s, advertising had no First Amendment protection whatsoever.  Today, the law has evolved so that commercial speech has gained increasing protection, but is still treated separately from traditional, political, and social speech.  The classic example is that a politician is free to say anything he wants whether it is true or not, but that a commercial speaker can be preventing from saying anything that is false and deceptive.

A second core principal is that the government has always had a right to regulate the sale of commercial products to protect well recognized, legitimate governmental interests, including requiring that certain products carry warnings so that consumers are adequately informed of any special risk of using their product.  There is, for example, a national acceptance of a skull and crossbones on a bottle of poison, or the list of side effects that accompanies most drugs so that people recognize the risk.  The use of the graphic image of the skull and crossbones ensures that those who are not yet old enough to read or who are not literate understand this risk.  The use of warnings on drugs makes sure consumers make informed choices.

MCF

Is there in your mind any legal difference between the image of the skull and crossbones and, say, a graphic warning label of a man with a tracheostomy?

MM

From my perspective, there should be no distinction from a First Amendment standpoint for the following reason: those warnings are designed to communicate effectively the risk of the product to a specific target audience.  Graphic warning labels for cigarettes were proposed because there is substantial evidence to indicate that a stunning number of people still do not recognize the magnitude of the risks of smoking.  There is also a substantial body of evidence to indicate that many individuals who can properly respond to a questionnaire about the health risks of smoking do not believe that those risks apply to them.  And, lastly, in the United States, more than 80% of all new tobacco users are children.  The data shows that adolescents are less well informed, understand the health risks of smoking less completely, and often do not think that those risks apply to them.  Graphic warnings, when properly done, are the best way to counteract each and every one of those failings.

The U.S. has been a leader in identifying the health hazards of smoking.  The U.S. courts have documented that despite these health hazards the tobacco companies have long targeted youth in their marketing.  It is the official position of the United States of America that we are attempting to discourage tobacco use.  The fact that these warnings are designed to insure that people understand the true magnitude of smoking, to prevent tobacco industry marketing from glamourizing the image of tobacco use, and to encourage people to think about the risk before picking up a cigarette is consistent with the First Amendment in our view, particularly for cigarettes: a product that kills when used exactly as intended.  There is no use of cigarettes that doesn’t cause harm.  The tobacco industry argues that warning labels violate their First Amendment rights because they claim the warnings require them to encourage the consumer not to use their product.  This argument in my mind fails precisely because under the guise of saying that the government cannot require them to discourage people from using their product, what they are really saying is the government should not be allowed to require a warning that is so graphic that it will, in fact, get the attention of a smoker and prompt them to think sincerely about the health risks of the product.

If this issue ever gets to the Supreme Court, it is hard to predict what the Court will do.  The lower courts have not been consistent.  One tobacco case which came out of Kentucky and then went to the United States Court of Appeals for the Sixth Circuit in Cincinnati, evaluated the law that required warning labels on 50% of the front and back of the pack and mandated the warnings to be graphic.  This court upheld the constitutionality of that requirement.  A separate case in the U.S. Court of Appeals for the District of Columbia looked at the specific warning labels and the government’s rationale for those warning labels and found that those specific warning labels violated the tobacco industry’s First Amendment rights.  While the two cases decided different precise factual issues, their discussion of the scientific evidence and the lawful goals of warning labels would appear to be different.

MCF

There seems to be overwhelming evidence that these graphic warning labels work.  How does that impact the constitutionality of restricting commercial speech?

MM

It should impact the constitutionality directly because of the Supreme Court case that gave rise to the four-part “Central Hudson” test.  The first part relates to whether or not the advertising relates to a lawful issue and, whatever we may think, selling cigarettes is still lawful in this country.  The rest of the test, however, states that a government restriction on commercial speech can be upheld if it deals with an issue of substantial governmental interest, directly advances that governmental interest, and the proposed restriction is reasonably related to that governmental interest.

The Supreme Court has previously said that restricting tobacco use, particularly among kids, represents a substantial governmental interest.  The Court has also previously said in other cases that adequately informing consumers about a dangerous product represents a substantial governmental interest.  So, under the Court’s test, if a rule governing warnings or a particular set of warnings directly advances the government’s interests of either better informing consumers or discouraging tobacco use among youth, it should pass constitutional muster—if it is not broader than necessary.

One of the realities of our legal system is that decisions are made by judges.  The Court of Appeals for the 6th Circuit found that there is substantial scientific and factual evidence demonstrating that graphic warning labels effectively communicate the health risks of tobacco use and discourage tobacco use.  And that was part of the rationale that prompted the court to uphold them.  On the other hand, a different set of judges in the District of Columbia discounted virtually all of the scientific evidence that related to the impact of warning labels on educating consumers and impacting tobacco use.  The D.C. Circuit went on further to say that, even if there was sufficient evidence that the challenged warning labels did discourage young people from starting to smoke or encouraged smokers to quit, they would uphold the claim of the tobacco companies that it is a violation of the First Amendment to require them to market actively against themselves.  So it is hard to reconcile the two decisions when you read them in detail, and it is in no small part because the two courts looked at the same body of scientific evidence and reached entirely different factual conclusions.

MCF

In comparison to the lawsuits concerning graphic warning labels, what legal opposition can we expect with regard to the proposed law to ban the display of cigarettes behind store counters in New York City?

MM

There is no question that there will be a First Amendment challenge if New York City succeeds in banning the public display of cigarettes.  The court will apply the same “Central Hudson” test.  The very first question that will have to be answered is, “Is the science adequate to demonstrate that the display of cigarettes encourages youth initiation or discourages adult cessation?”  If the court answers that question in the affirmative, then it will have to ask itself, “Is the scientific evidence adequate to demonstrate a reasonable likelihood that banning the display of those products will directly advance the government’s interests of discouraging use among youth and encouraging adult discontinuation?”  In other words, it will ask the question, “What does the science show us about the impact of banning public display of those products?”

MCF

Do you think there will be any question of whether the display of cigarettes behind store counters qualifies as advertising?

MM

I think that the industry will argue that product displays qualify as advertising or promotion.  New York City will argue that the ban on the display is simply a restriction on sales, which, if drafted correctly, I think is a good argument.  But it will not alter the fact that the court will interpret the restriction on visibility of tobacco products to have an impact on commercial speech rights.  The only questions, I believe, will be, “Is the evidence of the impact of displaying cigarette packs and the impact of a ban on display of cigarette packs adequate to justify that action?”

MCF

What past evidence or case law might New York City be able to utilize?

MM

The majority of the evidence comes from other countries that have already banned the display of cigarettes.  In most countries around the world, commercial speech does not receive the kind of protection that our courts have given it over the last decade.  But there is evidence from Canada, Australia, New Zealand, and a couple of other countries that indicates that the display of cigarette packs is associated with spontaneous purchases by people who went to stores with no intention to purchase tobacco products.  Evidence from broader reviews of the role of advertising and product displays also supports the concept that highly visual display bans increase sales.  It is for precisely that reason that sellers spend so much money making their product packaging so attractive and insist on eye catching display arrangements.  If it works for every other product, why wouldn’t it work for tobacco? What is harder to project is whether that evidence will be adequate to satisfy our courts.  Ten years ago I would have told you it would clearly be upheld, but the conservative courts over the last decade have given increasing deference to commercial speech.  That means that the law in this area is a moving target.  Under traditional standards it would easily pass constitutional review.  Today, we will have to wait to see.

MCF

What international precedents do we have for these issues?

MM

The rest of the world—including countries that place a very high premium on protecting free speech—thinks we’re crazy in how our courts have treated advertising of commercial products in the last ten to fifteen years.  The D.C. Court of Appeals ruled that warning labels were unconstitutional in the United States just weeks after the Australian Supreme Court upheld the requirements that cigarettes only be sold in brown paper packages with no logos, and with graphic warning labels covering 80% of the product.  And that is because even in countries like Australia, Canada, and New Zealand that afford very substantial protection to free speech, they recognize the difference between commercial speech designed to sell products and political, social, and literary speech that goes to the heart of our democracy.  Outside the United States in the most thriving democracies on the globe, neither the proposed U.S. warning labels or the proposed ban on the display of cigarette packages would lead to a serious speech challenge—there would not even be a close question.  So, there is a lot more to do here.