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Richard F. Lee

Abstract

American cigarette warning labels are lackluster compared to others around the world. To address this inadequacy, the FDA created nine graphic-image cigarette warning labels that were scheduled to appear on all cigarette packages sold in the US beginning in 2012. However, before they debuted, the D.C. Circuit Court of Appeals struck the labels down in R.J. Reynolds Tobacco Co. v. FDA, holding that they constituted compelled commercial speech in violation of the First Amendment. This Note argues that the R.J. Reynolds decision conflicts with the Supreme Court's commercial speech jurisprudence. Historically, the Supreme Court has applied limited First Amendment protection to commercial speech under a "marketplace of ideas" rationale. Accordingly, the Court has applied a rational basis standard to regulations compelling commercial speech since such regulations increase the amount of commercial information available to consumers and the public. Despite this precedent, the D.C. Circuit in R.J. Reynolds applied heightened scrutiny to the FDA's graphic-image cigarette warning labels, protecting industry interests at the public's expense. This Note argues that courts should apply a rational basis standard to all commercial disclosure requirements so long as they do not compel disclosure of misleading content. In turn, this note argues that the D.C. Circuit should have upheld the FDA's cigarette warning labels under rationality review. Even if offensive to some, the labels would have enhanced the marketplace of ideas that the Supreme Court's commercial speech doctrine was designed to protect

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