The FDA's Graphic Tobacco Warnings and the First Amendment
Rather than seek Supreme Court review of the D.C. Circuit's decision, the FDA opted to return to the drawing board and develop new graphic warnings. In the meantime, we are left with some important questions.
First, when do graphic warnings cross the line between trying to inform and trying to persuade? Does it depend on how “shocking” or how prominent they are? Two of the three D.C. Circuit judges thought that the images were designed to evoke an emotional response rather than to convey factual information. The dissenting judge cited the FDA's point that warnings more effectively communicate information when they elicit a strong emotional reaction. In addition, the images would provide information about risk when viewed in conjunction with their accompanying text. For example, the image of the man smoking through a tracheostomy accompanied the warning “Cigarettes are addictive” and would have illustrated the tenacity of nicotine addiction. In the dissenter's view, the images would have been acceptable without the cessation hotline number.
Second, must the warnings correct misleading impressions from the company's cigarette packaging or current advertisements, or may they also correct misimpressions from past promotional materials?
Third, if courts will not defer to the judgment of public health authorities about the need for disclosure mandates, what kind of empirical evidence must the FDA present in order to justify the use of graphic warnings?
Whatever the answers to these questions, companies today are better able to promote their products, and government is less able to promote health than was the case in the past. Ironically, early protection of commercial speech rested in large part on the need to serve consumers' welfare. In 1976, for example, the Supreme Court struck down a Virginia law that prevented pharmacists from advertising their prices for prescription drugs.5 The law especially hurt persons of limited means, who were not able to shop around and therefore might not be able to afford their medicines. Today, by contrast, courts are using the First Amendment to the detriment of consumers' welfare, by invalidating laws that would protect the public health.
Información publicada originalmente en:
http://www.nejm.org/doi/full/10.1056/NEJMp1304513?query=TOC&
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