RICHARD J. LEON, District Judge.
Plaintiffs in this case ("plaintiffs") are five tobacco companies, which include the second-, third-, and fourth-largest tobacco manufacturers and the fifth-largest cigarette manufacturer in the United States. Complaint ("Compl."), Aug. 16, 2011, ¶¶ 8-12 [Dkt. # 1]. In June 2011, defendant United States Food and Drug Administration ("FDA") published a Final Rule requiring (among other things) the display of nine new textual warnings — along with certain graphic images
The Family Smoking Prevention and Tobacco Control Act ("Act" or "the Act"), Pub.L. No. 111-31, 123 Stat. 1776 (2009),
Congress required that these new textual warnings and graphic images occupy the top 50% of the front and back panels of all cigarette packages, Act § 201(a) (amending 15 U.S.C. § 1333(a)(2)), and the top 20% of all printed cigarette advertising, id. (amending 15 U.S.C. § 1333(b)(2)). It gave the FDA "24 months after the date of enactment" of the Act to issue regulations implementing the requirements of Section 201. Act § 201(a) (amending 15 U.S.C. § 1333(d)); Compl. ¶ 33. Finally, under the Act, the new textual warnings and graphic-image labels (and the related requirements) were scheduled to take effect 15 months after issuance of the Rule. Act § 201(b) (note on amending 15 U.S.C. § 1333).
On November 12, 2010, the FDA submitted for public comment a Proposed Rule unveiling 36 graphic color images that could be displayed with the 9 new textual warnings created by Congress.
After a period of notice and comment in which the FDA reviewed more than 1,700 comments, it published a Final Rule on June 22, 2011. See 76 Fed. Reg. 36,628-36,629; Compl. ¶ 57. Of the 36 graphic images originally proposed, the FDA chose 9 for publication. Compl. ¶ 57. The new graphic images, which will rotate according to an agency-approved plan, Act § 201(a) (amending 15 U.S.C. § 1333(c)(2)); Compl. ¶ 30, include color images of a man exhaling cigarette smoke through a tracheotomy hole in his throat; a plume of cigarette smoke enveloping an infant receiving a kiss from his or her mother; a pair of diseased lungs next to a pair of healthy lungs; a diseased mouth afflicted with what appears to be cancerous lesions; a man breathing into an oxygen mask; a bare-chested male cadaver lying on a table, and featuring what appears to be post-autopsy chest staples down the middle of his torso; a woman weeping uncontrollably; and a man wearing a t-shirt that features a "no smoking" symbol and the words "I QUIT." See Compl. ¶¶ 57, 59. An additional graphic image appears to be a stylized cartoon (as opposed to a staged photograph) of a premature baby in an incubator. Id. Plaintiffs allege, on information and belief, that many of these images are technologically manipulated,
In addition to being paired with one of the nine new textual warnings introduced
Summary judgment is appropriate when the movant demonstrates that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(a). The moving party bears the burden, and the court will draw "all justifiable inferences" in the favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Nevertheless, the non-moving party "may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial." Id. at 248, 106 S.Ct. 2505 (internal quotations omitted). Factual assertions in the moving party's affidavits may be accepted as true unless the opposing party submits its own affidavits, declarations, or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C.Cir.1992).
Plaintiffs oppose the placement of the Government-mandated warnings on the top 50% of the front and back portions of their cigarette packaging.
A fundamental tenant of constitutional jurisprudence is that the First Amendment protects "both the right to speak freely and the right to refrain from speaking at all." Wooley, 430 U.S. at 714, 97 S.Ct. 1428. A speaker typically "has the autonomy to choose the content of his own message." Hurley, 515 U.S. at 573, 115 S.Ct. 2338. And, in fact, "[f]or corporations as for individuals, the choice to speak includes within it the choice of what not to say." Pac. Gas & Elec. Co. v. Pub. Utils. Comm'n of Cal., 475 U.S. 1, 16, 106 S.Ct. 903, 89 L.Ed.2d 1 (1986) (plurality opinion). As plaintiffs so aptly stated, although "the Government may engage in [] advocacy using its own voice[,] ... it may not force others, such as Plaintiffs, to serve as its unwilling mouthpiece." Reply in Supp. of Pls.' Mot. ("Pls.' Reply"), Nov. 18, 2011, at 1 [Dkt. # 42]; see Sorrell v. IMS Health, Inc., ___ U.S. ___, 131 S.Ct. 2653, 2671, 180 L.Ed.2d 544 (2011) ("The State can express [its] views through its own speech. But a State's failure to persuade does not allow it to hamstring the opposition. The State may not burden the speech of others in order to tilt public debate in a preferred direction."). Thus, where a statute "`mandates speech that a speaker would not otherwise make,' that statute `necessarily alters the content of the speech.'" Entm't Software Ass'n v. Blagojevich, 469 F.3d 641, 651 (7th Cir. 2006) (quoting Riley v. Nat'l Fed'n of the Blind of N.C., Inc., 487 U.S. 781, 795, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988)). As the Supreme Court itself has noted, this type of compelled speech is "presumptively unconstitutional." Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 830, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995).
In the arena of compelled commercial speech, however, narrow exceptions do exist and allow the Government to require certain disclosures to protect consumers from "confusion or deception." Zauderer, 471 U.S. at 651, 105 S.Ct. 2265. Indeed, courts apply a lesser standard of scrutiny to this narrow category of compelled speech through which the Government may require disclosure only of "purely factual and uncontroversial information." Id. Even under this paradigm, however, compelled disclosures containing "purely factual and uncontroversial information" may still violate the First Amendment if they are "unjustified or unduly burdensome." Id. Unfortunately for the defendants, the images here neither meet the Zauderer standard, nor are narrowly tailored to avoid an undue burden to the plaintiffs' speech. How so?
First, after reviewing the evidence here it is clear that the Rule's graphic-image requirements are not the type of purely factual and uncontroversial disclosures that are reviewable under this less stringent standard.
Not surprisingly the use of the graphic images accomplishes just that: an objective wholly apart from disseminating purely factual and uncontroversial information. That Dr. David Hammond — a researcher upon whom the Government relies — recommended that the graphic warnings should "elicit negative emotional reactions" to convince smokers to quit undercuts any argument that the images are purely factual. See David Hammond, Health Warnings Messages on Tobacco Products: A Review, 20 Tobacco Control 327, 331-32 (2011) ("Hammond Review"); Defs.' Opp'n at vi. Indeed, the FDA measured the efficacy of the graphic images by their "salience," which the FDA defines in large part as a viewer's emotional reaction. See Compl. ¶ 58 (citing 76 Fed. Reg. 36,638-36,639).
Further, the graphic images are neither factual nor accurate. For example, the image of the body on an autopsy table suggests that smoking leads to autopsies; but the Government provides no support to show that autopsies are a common consequence of smoking. Indeed, it makes no attempt to do so. Instead, it contends that the image symbolizes that "smoking kills 443,000 Americans each year." Defs.' Opp'n at 42. The image, however, does not provide that factual information. Similarly, the image of a man exhaling cigarette smoke through a tracheotomy hole in his throat is not being used to show a usual consequence of smoking. Instead, it is used to symbolize "the addictive nature of smoking" — a fact that is not accurately conveyed by the image. Id. at 37. Put simply, the Government fails to convey any factual information supported by evidence about the actual health consequences of smoking through its use of these graphic images.
The images, coupled with the placement of the toll free number, do not "promote informed choice" but instead advocate to consumers that they should "QUIT NOW." A telling example is the image depicting a man wearing a t-shirt that features a "no smoking" symbol and the words "I QUIT" next to the "1-800-QUIT-NOW" phone number. This image contains no factual information, and even the Government concedes this image "encourag[es] cessation." Defs.' Opp'n at 43 (quoting 76 Fed. Reg. 36,656). Likewise, the Secretary and the Commissioner of the FDA ("the Commissioner") have acknowledged that the
Rather than fit the Zauderer paradigm, "the disclosures mandated in this case are much more similar in form and function to those at issue in Blagojevich, 469 F.3d at 643, 652." R.J. Reynolds, 823 F.Supp.2d at 46. There, the Seventh Circuit refused to apply the Zauderer standard of scrutiny to a state law that required video game retailers to affix a four-square-inch sticker with the number "18" (representing age 18) on any game deemed "sexually explicit" under the statute. 469 F.3d at 643, 652. "Just as the Seventh Circuit recognized that a compelled video-game label based on what the state deemed to be `sexually explicit' was `far more opinion-based than the question of whether a particular chemical is within any given product,' Blagojevich, 469 F.3d at 652 (referencing Sorrell), so too are the graphic images promulgated as part of the FDA's rule a more subjective vision of the horrors of tobacco addiction." R.J. Reynolds, 823 F.Supp.2d at 46. Indeed, like the stickers in Blagojevich, the graphic images "ultimately communicate[] a subjective and highly controversial message." Blagojevich, 469 F.3d at 652. The Rule, therefore, does not fit into the Zauderer exception for purely factual and uncontroversial information. See Pac. Gas & Elec., 475 U.S. at 15 n. 12, 106 S.Ct. 903 ("Nothing in Zauderer suggests ... that the State is equally free to require corporations to carry the message of third parties, where the messages themselves are biased against or are expressly contrary to the corporation's views."). Thus, these images must withstand the strict scrutiny analysis the Supreme Court imposes on Government regulations which compel commercial speech.
To withstand strict scrutiny, the Government carries the burden of demonstrating that the FDA's Rule is narrowly tailored to achieve a compelling government interest. See, e.g., A.N.S.W.E.R. Coal. v. Kempthorne, 537 F.Supp.2d 183, 195 (D.D.C.2008) (citing Boos v. Barry, 485 U.S. 312, 322, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988) and Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995)). Unfortunately for the Government, it fails to satisfy this burden.
First, although the Government contends that it has a compelling interest — "conveying to consumers generally, and adolescents in particular, the devastating consequences of smoking and nicotine addiction," see Defs.' Opp'n at 23 — its "stated purpose does not seem to comport with the thrust of its arguments, or with the
As I noted previously, "the sheer size and display requirements for the graphic images are anything but narrowly tailored." R.J. Reynolds, 823 F.Supp.2d at 48. Under the Rule, plaintiffs are forced to act as the Government's mouthpiece by dedicating the top 50% of the front and back of all cigarette packages manufactured
Finally, with respect to the content of the graphic images, it is curious to note that plaintiffs have offered several alternatives that are easily less restrictive and burdensome for plaintiffs, yet would still allow the Government to educate the public on the health risks of smoking without unconstitutionally compelling speech. First, the Government could disseminate its anti-smoking message itself, for example, by increasing its anti-smoking advertisements or issuing additional statements in the press urging consumers to quit smoking or both. Pls.' Mot. at 28. Although doing so might impose costs on the Government, see Defs.' Opp'n at 22, "[c]itizens may not be compelled to forgo their [First Amendment] rights because officials... desire to save money." Palmer v. Thompson, 403 U.S. 217, 226, 91 S.Ct. 1940, 29 L.Ed.2d 438 (1971). Of course, by now it is clear that the Government's actual concern is not the potential for added cost as the FDA recently announced that it will be spending $600 million on a new — presumably believed to be effective — anti-smoking multimedia campaign. See Pls.' Reply at 47. Second, the Government could change the display requirements. Specifically, the Government could reduce the space appropriated for the proposed "warnings" to 20% of the packaging or require "warnings" only on the front or back of the packaging. Pls.' Mot. at 29-30. Third, the Government could change the content by selecting graphics that conveyed only purely factual and uncontroversial information rather than gruesome images designed to disgust the consumer. Id. at 30. Fourth, the Government could increase cigarette taxes. Id. at 29. And lastly, the Government could improve efforts to prevent the unlawful sale of cigarettes to minors. Id. Any one of these suggestions would be less restrictive than the Rule's current requirements. Unfortunately, because Congress did not consider the First Amendment implications of this legislation, it did not concern itself with how the regulations could be narrowly tailored to avoid unintentionally compelling commercial speech.
For all the foregoing reasons, plaintiffs' Motion for Summary Judgment [Dkt. # 10] is GRANTED, and defendants' Cross-Motion for Summary Judgment [Dkt. # 35] is DENIED. An order consistent with this decision is attached herewith.