According to the Surgeon General, tobacco use is the leading preventable cause of death in the United States. Smoking-related diseases kill 443,000 Americans each year, more than are killed by HIV, illegal drug use, alcohol use, motor vehicle injuries, suicides, and murders combined. To address this public health threat, Congress enacted the Family Smoking Prevention and Tobacco Control Act (TCA) in 2009, which gave the federal government unprecedented power to regulate the tobacco industry. Among its provisions, the TCA requires the U.S. Food and Drug Administration to select images that depict smoking’s deleterious effects and compels tobacco companies to display the images, accompanied by a textual warning, on half of the front and rear panels of every cigarette package. This new graphic format—the first alteration of cigarette package warnings in over twenty-five years—represents a significant and aggressive change in the way that the government communicates the dangers of smoking to the public.
To prevent the introduction of these new labels into the marketplace, the tobacco industry has filed suit alleging that the graphic warnings infringe on its First Amendment right to refrain from speaking. The two circuit courts that have considered this issue are divided sharply over the labels’ constitutionality and the appropriate framework for assessing them. This Note examines this legal fissure and argues that the warnings should be examined under the strict scrutiny standard of judicial review. Ultimately, this Note contends that the labels do not pass muster under this intense level of scrutiny and are thus unconstitutional compulsions of speech.