The FDA's Ghoulish Cigarette Labels

Richard Epstein

Recently, the Supreme Court refused to review a decision of the Sixth Circuit that sustained the power of the Food and Drug Administration to require tobacco companies to place ghoulish warnings and images on tobacco packages. The challenge was based on the ground that the forced inclusion of warnings adverse to the interest of tobacco companies was a kind of forced speech that the First Amendment forbade.The argument on the opposite side was that the Congress has extensive powers that allow it to require the FDA to develop warnings and pictures that, in the most forceful way possible, bring the horrors of smoking home to the potential individuals who engage in it.

I approach this issue with mixed emotions. My first awareness of the dangers of tobacco came when I was nine years old and my family took extensive steps to persuade my late physician father to quit smoking, which he did for the rest of his life. I myself have never had the slightest interest in smoking cigarettes and have mounted many a campaign to persuade others to quit the habit.
Perhaps for just this reason, in the 1980s I worked as a legal consultant with Philip Morris in the effort to resist the ultimately successful efforts of the plaintiff’s bar to persuade the federal courts to allow tort actions to be brought against the tobacco companies on the ground that these companies had either understated or concealed the dangers associated with smoking.

The reason was pretty clear. I thought then and now that the basic dangers of cigarettes were so clearly etched into the consciousness of every sentient being that it was pointless to allow individual claims to go forward on the grounds that some individual smokers were so naive that they had no knowledge of what everyone else knew.

In taking this position, I did not think that it was necessarily irrational for all people to smoke, even if they were fully cognizant of the risk. The individual choice depends on two key factors. The first is the extent of the smoking risk, not just its existence. That risk is in fact lower than many people think when due regard is given these two considerations: the probability of contracting cancer or other dangerous conditions, and the delay between the time of smoking and the onset of illness. The first of these factors is less than one, and can be reduced by some material extent by stopping smoking as one gets older, and the risks of tobacco become greater. The second factor requires some stiff discounting to get the correct costs. In combination they reduce the magnitude of the risk.

On the second side of the equation sits the pleasures of smoking, which hold no charm for me.  But others have different needs and desires, and it makes perfectly good sense that some people will think that those benefits outweigh the associated costs, especially if they choose to moderate their consumption by switching to low tar/nicotine brands, and reducing the number of cigarettes smoked.
Over time, as the information about smoking has become more salient, the number of smokers has declined, and the mix of brands sold has shifted as well as filter cigarettes have become more common. I do not see any real evidence of a breakdown in information markets that requires the warnings that the government puts on its packages. Indeed, I think that -- far from giving true and accurate information about smoking -- the blunderbuss nature of these warnings contributes to the overall misinformation about the risks associated with the use of tobacco, and does so in a deliberate and self-conscious fashion.
I have no doubt that the government can implement regulations requiring correct information to be put out by the tobacco companies. But that modest office is not the objective of the current campaign, and there is nothing about the state power to regulate tobacco in the name of health and safety that allows it force tobacco companies to make false (i.e. exaggerated) statements about their own product. Public disinformation is not a legitimate end of government. Indeed, I would go further. I do not think that the government should spend public moneys to promote this same message, even if it does not require tobacco companies to participate in its own advertising campaign.

The bottom line is this: There is no legitimate government interest in deliberately making false statements by products no matter how noble the motive. For folks like me, the warnings are superfluous because nothing could get me to smoke in the first place. To others, they are just abusive -- they will continue to smoke nonetheless. And for all of us, it is a sorry spectacle for a paternalist government to resort to deliberate overstatements, no matter how lofty the intent.  When this issue does reach the Supreme Court, the laws should be struck down as an abuse of government power under the First Amendment.