Could open door to warnings on sodas, other products

A D.C. District court judge has rejected a tobacco industry First Amendment challenge to health warnings on print and broadcast/digital ads for cigars, a decision that may have opened the door for health warnings on other products, like sodas or fast food.

When the FDA brought cigars and other tobacco products under its regulatory ambit, that included requiring health warnings on packages and ads--as is required of cigarettes--but a trio of cigar associations challenged the new warnings on First Amendment and other grounds, calling them an impermissible restriction on commercial speech because they crowd out--thus prohibiting--the ability on retailers and manufacturers to communicate with customers--the warnings must comprise 30% of a package, or 20% of an ad. 

Judge Amit P. Mehta didn't see it that way in handing down his ruling this week. While prohibitions on commercial speech must be reviewed under an intermediate scrutiny standard--something less than the strict scrutiny for non-commercial speech--Mehta said the truthful messaging of the warnings was not a prohibition that demanded that intermediate scrutiny.

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Instead, he ruled, the correct, more relaxed standard--for which there is Supreme Court precedent in Zauderer for truthful health warnings is only that they be “reasonably related to the [government’s] interest,” and not so “unjustified or unduly burdensome” as to chill protected commercial speech."

The judge pointed out that tobacco companies could communicate all they wanted in the 70% of packaging and 80% of ads that did not have the warnings. 

The Supreme Court held in Zauderer that “material differences between disclosure requirements and outright prohibitions on speech." Mehta said that was the proper standard for the health warnings on ads and packages. 

Related: Anti-Tobacco Ads Return to TV

While that applies to ads for cigars, one veteran public interest attorney who helped get cigarette ads off TV, thinks it has wider implications. 

George Washington University Law Professor John Banzhaf argues the relaxed First Amendment scrutiny for warning labels "opens the door to similar warnings on a wide variety of other products including sugary soft drinks, e-cigarettes, many fast food items, and even movies in which people smoke."

Related: FDA Rule on Vaping Claim Raises Speech Issues

He points out that San Francisco tried to put warning labels on sugary beverages saying: "WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay."

"The 9th Circuit ruled that it was unconstitutional but, in an unusual move, the entire circuit court recently agreed to reconsider the matter," he said. The Mehta ruling could give the court new food for thought.

The cigar warnings can be traced to a 2006 settlement with the government over tobacco companies "fraudulently distorting and minimizing the health effects of smoking; falsely denying and minimizing the addictiveness of smoking and nicotine; designing cigarettes to create addiction; fraudulently presenting light/low-tar cigarettes as less dangerous; falsely denying marketing to youth; and falsely denying the hazards of secondhand smoke."