Volume 64, Issue 5, 1467-1500
When Congress passed the nation’s first comprehensive tobacco bill in 2009, it replaced the familiar Surgeon General’s warnings, last updated in 1984, with nine blunter warnings. The law also directed the U.S. Food and Drug Administration (“FDA”) to require color graphics to accompany the textual warnings. By law, the warnings would cover the top fifty percent of the front and back of tobacco packaging and the top twenty percent of print advertisements, bringing the United States closer to many peer countries that now require graphic warnings. Tobacco companies challenged the requirement on First Amendment grounds, arguing that the compelled disclosures violated their free speech rights. In 2012, the Sixth Circuit Court of Appeals treated the challenge as a facial attack and upheld the law in Discount Tobacco City & Lottery v. United States; five months later, the D.C. Circuit vacated the graphic warnings selected in the FDA’s final rule in R.J. Reynolds v. FDA. Although many expected the Supreme Court to resolve the apparent circuit split, the government withdrew the rule and opposed Supreme Court review. As such, the FDA will reinitiate the lumbering rulemaking process and propose new graphic warnings. And when it does, the tobacco industry most likely will challenge the graphic warnings again on First Amendment grounds. This Article considers several ambiguities that these cases have left unresolved and suggests how the FDA and courts should confront these questions during the next round of rulemaking and litigation. The Supreme Court will probably have another chance to resolve these ambiguities and its decision could have significant consequences for future government efforts to catch our attention at the point of sale.