The Anti-Speech, Anti-Business Implications of Graphic Tobacco Labels

USA Today on Friday editorialized in support of warning labels on cigarette packs meant to repulse would-be smokers by showing them images of disease, death and doom. As the headline suggests, “Graphic warnings turn tables on cigarette marketers,” the core argument is that after all the advertising those lousy tobacco companies have done, why, they deserve it.

It’s always troubling to see newspaper opinion pages argue against First Amendment rights. Thankfully, as is its practice, the paper printed a rebuttal directly below its editorial, a piece by Dan Jaffe, executive vice president of government relations for the Association of National Advertisers. From “A massive censorship scheme“:

Unlike all other governmentally mandated ad disclosures, this is not simply a requirement to provide truthful, neutral information to the public. Rather, it is a transparent effort to utilize the cigarette pack and ads to stigmatize the product and as a medium for the government’s anti-tobacco messages.

The Supreme Court has made clear, however, that private companies cannot be coerced to spend or utilize their own money or property to become the government’s ventriloquist dummies, billboards or megaphones.

Despite claims to the contrary, these proposals would create broad precedents for the advertising community. The Supreme Court forcefully holds that all product categories, however controversial, have equal protection under the First Amendment.

Nor is it plausible that these proposals, justified on the powerful convincing impact of visual imagery, will be applied only in the “unique” case of tobacco.

We’re reminded of EPA’s recent labeling scheme, sticking letter grades on vehicles according to their fuel-efficiency. What happens when the public insists on continuing to buy cars that get a B-minus grade or below? Instead of an educational label, which is what the original cigarette labels were, we can imagine exhortations — “You can help save the environment by buying vehicles with higher grades than C” — and then demonizations: “If you buy this car, you are helping to cause rising ocean levels that will drown the people of Nauru and Bangladesh, especially all the children who can’t swim.” And then, the graphic photos.

Reduction ad absurdum and slippery slope arguments, we know. But it’s also history.

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