What you’ll learn in this post: How the tobacco industry has used the doctrine of “commercial free speech,” and the First Amendment against the public interest in this country.
In case you thought that we as a society are making headway against one of the most pernicious and harmful industries in this country – the tobacco industry – I’m afraid I have some bad news. To fully appreciate this post will require that you have traveled to Europe in the past ten years or so. Because across the pond, a lot of things are looked at much more sensibly than they are here in the good old USA. Exhibit “A” on this point is the Europeans’ approach to tobacco and cigarette advertising. In 2001, the member nations of the European Union formally enacted a requirement that each nation pass regulations to assure that graphic warnings and images be placed on the front and back of each package of cigarettes. Member nations of the European Union can choose from a list of 14 to 42 graphic warnings and images – all of which communicate the very stark and morbid risk of not only death, but a variety of other chronic health risks. For a look at these images, click here. Now that you’ve seen these warnings, I trust you can see how very effective they are.
Back to the US: Here, it took decades for the federal government to come around to the reality that the tobacco industry has been knowingly marketing a highly lethal product for almost a century. While it took seemingly forever to bring these manufacturers to court and hold them accountable for their unsafe products under state and federal product liability laws, justice was finally found in a number of cases across the country, including class action litigation that several state attorneys general brought to recoup billions of state Medicaid dollars spent to treat illnesses caused by smoking and tobacco. Tobacco liability was finally something that the courts embraced. The next logical step was to emulate the European Union’s approach to cigarette advertising, and require that manufacturers place graphic warnings and images on all their packaging here in the United States. And the federal Food and Drug Administration (FDA) did just that, recently requiring that all cigarette advertising carry graphic warnings on their packaging, similar to that required in Europe. Makes sense, wouldn’t you think? A lot of people do.
Except, of course the tobacco industry. And now, sadly, a federal judge. You see, quite predictably, when the industry got the first whiff or “puff” of this news, they marched into federal court claiming that this regulation trampled on their “commercial free speech rights.” For readers who haven’t heard of this legal concept, it essentially claims that, being legally considered as “persons,” corporations have the right of free speech, too, just like individual citizens do. And the apparently successful argument that the tobacco companies advanced in court in the past year, is that a government regulation like the FDA’s new warnings “infringes” on the tobacco companies’ free speech rights, because it forces them to advance a government opinion at their expense.
And guess what? They got a federal judge to agree with them.
Last week, a federal judge, ruling in favor of the tobacco companies, shot down the planned FDA regulation that would have required the placement of graphic warnings and images on cigarette packaging. The legal foundation for this ruling is based on the above doctrine of “commercial free speech.” This legal doctrine, while it has lofty goals, has been perverted to advance a number of extremely dangerous products to be manufactured and marketed in this country. As a Boston, Massachusetts tobacco liability lawyer, I know just how awful some of the results can be when corporations are allowed to manufacture whatever they want, market whatever they want, and “say” whatever they want. This includes not only industries like tobacco, but the video game industry as well. I’ve blogged previously, on more than one occasion, about the recent U.S. Supreme Court decision on violent video games. In that horrid decision, the court shot down the state of California’s entirely reasonable attempt to ban the sale or rental of barbarically violent video games to teenagers under age 18. Like the tobacco industry, the video game industry went into court against that law using the “commercial free speech” argument, also – and they succeeded.
The words “free speech” in this country have been hijacked by big business, to their strategic advantage – and to the average American’s disadvantage. As a Boston, Massachusetts cancer liability lawyer, I regrettably believe that our federal judiciary is blind and too silent to what is being done to the rights of average Americans through the twisted arguments advanced by corporate interests in this country.
But then again, silence, like a cancer, grows.