Today the D.C. Circuit ruled 2-1 against the FDA, finding that proposed graphic warnings on cigarette packages were unconstitutional. According to the FDA, graphic images showing the harmful health consequences to smoking would essentially drive users to quit - and stop underage smokers from starting in the first place. Per the Wall Street Journal, the images "include pictures of diseased lungs, a body on an autopsy table and a man blowing cigarette smoke out of a tracheostomy hole in his neck that will be combined with stronger wording such as smoking can kill you.” Also on the package would be a phone number of the National Cancer Center Institution's quit-smoking telephone line (1-800-QUIT-NOW).
According to the majority, the case involves novel questions of the scope of governmental authority to force a manufacturer to go beyond factual statements and disclosures, undermining its business interests and bearing the costs of "making every single pack of cigarettes in the country a mini-billboard for the government's anti-smoking message." The court devoted a good deal of time to settling on the appropriate level of scrutiny for such a regulation of commercial speech, but landed on the intermediate (under which the government must state a substantial interest justifying the regulation on commercial speech and also show the regulation directly advances that goal).
Here, the FDA's express goal/substantial interest was preventing consumers from smoking. Personally, I don't smoke: never have, never will. But I'd think that seeing pictures graphically showing the consequences of doing so upon picking up a pack of cigarettes would certainly make a person think twice about purchasing it. Yet causation is a knotty thing to prove. And the FDA, according to the court, failed to show the graphics would directly cause a decrease in smoking rates: thinking about quitting (or not buying) is not tantamount to following through on the thought, and large graphics were not proven more effective than existing labels. Speculation about the greater results is, as so often is the case, not enough.
So what evidence would have convinced the majority? The only thing I can think of is some sort of focus-group or similar research study as to the effect of graphics v. words on the human brain, tracked over the long term for links to behavioral choices. It might also necessitate testing a difference between types of graphics, the nature of the behavior under study (i.e. habitual, occasional, socially pressured, health v. other risks, etc.), the demographics of the target consumers (are pictures more effective on older or younger, educated or less-educated users) .... the variables are seemingly infinite. Intermediate scrutiny seems perhaps the most difficult of the three levels to grapple with when it comes to predicting how to marshal sufficient evidence in a given case - or before a given court.
I put it to you: what evidence and proof of causation/relationship would you expect to see in this kind of intermediate scrutiny case? Does it make a difference that the issue involves an affirmative obligation rather than a negative bar? How much does cost matter? More fundamentally, is intermediate scrutiny for commercial speech the right standard here when there is already broad recognition of the dangers associated with smoking and the effects of express warning labels? What makes graphics different? It's been said that a picture is worth a thousand words. It seems that the old adage is now the question of the day, at least for the FDA.
Full text of the decision here. Note the dissent's construction of the effect of graphics and the additional role of conveying health hazards as independent from decreasing smoking rates.