Family Smoking Prevention and Tobacco Control Act Rightly Overturned By Court


The Family Smoking Prevention and Tobacco Control Act of 2009 was struck down by a federal judge who ruled that Congress failed to abide by the First Amendment’s guarantee of free speech. However, “the significance of Wednesday’s [Feb. 29] ruling is unclear, since the Obama administration has appealed the injunction.” 

The Act, in part, mandates that tobacco companies post graphic images on cigarette packages that depict the horrendous effects of smoking, such as cancerous lungs and lips. Floyd Abrams, a prominent First Amendment scholar, said that "The government [. . .] is free to speak for itself, but it may not [. . .] require others to mouth its position.”

I find it alarming — if not altogether suspect — that Congress passed this law in the first place. The only exception to the free speech clause that is at all even related to the Act is that advertising receives diminished protection, which is not at issue here. Although the Act itself does place limitations on tobacco advertising, I fail to see how limitations authorize the government to mandate offensive graphic advertising, which, tobacco companies argued, “goes beyond the ‘compelled commercial speech’ courts have ruled is permissible under the First Amendment to protect consumers from confusion and deception.”

True, some of the elements of the Act, such as banning flavored cigarettes, are laudable, but a grocery list of laudable elements does not permit one of those elements to violate Constitutional rights. In his ruling, U.S. District Judge Richard Leon wrote that the images “were neither designed to protect the consumer from confusion or deception, nor to increase consumer awareness of smoking risks; rather, they were crafted to evoke a strong emotional response calculated to provoke the viewer to quit or never start smoking.” Put another way, inciting hysterics makes for poor argument and for even poorer governing.

I am suspect of conspiracy theory, but was the ultimate goal of the Act, which is to protect and preserve the well-being of U.S. citizens, sabotaged in backroom deals with the tobacco industry? Was the Act ultimately designed to fail? Is the Act really just a smokescreen to obfuscate the actual health risks so that cigarette makers can continue peddling addictive narcotics unabated behind the veiled threat of an advertising annoyance while politicians appear as anti-smoking, family-value heroes? Even though there is a provision in the Act that calls for limiting addictive additives, if the government really wants to protect U.S. citizens, why not patently stop tobacco companies from putting any amount of addiction enhancing chemicals in cigarettes? Does Congress really believe that fractional addiction is possible? According to community health sciences professor Michael Siegel the Act "creates the appearance of regulation without allowing actual regulation."

If the government’s aim is to protect society from the consequences of unhealthy behaviors, why not broaden the Act to read “The American Family Protection Act” and include other preventable health risk behaviors like number two, obesity, and number three, alcohol? Why not mandate that makers of fattening foods put pictures of grossly obese people on their product packages and that alcohol beverage producers put pictures of homeless, pee-stained gutter drunks on all containers, including, say, the 1982 Bordeaux collection sold in the U.S?

I am an ex-smoker and I’d just as soon hope the tobacco industry drops off into the sea. I smoked because I liked it for whatever insidious reasons. I knew the health risks long before the advent of “Warning Labels.” I quit because my two little girls, who had learned about the dangers of smoking in school health classes, but mostly from imbibing information from our anti-smoking culture, kept after me to quit. All we needed was society’s evolutionary censure and love and care for one another — not a dubious Congressional Act aimed at feathering political nests.

Photo Credit: mame Anthony