Moving the Goalposts: Judicial Ruling Against Graphic Tobacco Warning Labels
According to news sources such as CNN, judges ruled that a law passed by the Obama Administration was unconstitutional. In particular, the Food and Drug Administration(FDA) was sued by a group of tobacco companies led by R.J. Reynolds and Lorillard because they argued that the FDA’s requirement that graphic warning labels be placed on all cigarette packages was cost-prohibitive and would dominate and damage the packaging and promotion of their brands.
News sources typically gave the judge’s conclusion and noted that a Supreme Court fight was probably imminent because another appeals court has declared that the new labels are constitutional. However, these news reports did not mentioned the rationale of the judges. When news sources do this, the reader cannot determine the validity of the judges rationale. This media bias seems to occur more when experts are involved. That is, the media tends to trust experts and report on their opinions without providing an understanding of how they arrived at their opinion. As The Impartial Review News has noted before, that’s a logical fallacy referred to as an Appeal to Authority. That is, the reporter is asking you to trust the authority or expert without explanation.
In this particular case, the majority decision of the court appears to have committed the logical fallacy of “moving the goalpost.” In particular, they argued that in order for the government to prevent harm, they must prove beyond scientific doubt that their proposed intervention works.
In particular, the court said
“The only question before us is whether FDA’s promulgation of the graphic warning labels—which incorporate the textual warnings, a corresponding graphic image, and the “1-800-QUIT-NOW” cessation hotline number—violates the First Amendment.”
The court argued that
“The Proposed Rule states in its preamble that the government has a “substantial interest in reducing the number of Americans, particularly children and adolescents, who use cigarettes and other tobacco products. … The requirement that a restriction directly advance the asserted interest is “critical,” because without it, the government“could [interfere with] commercial speech in the service of other objectives that could not themselves justify a burden on commercial expression. … Like the district court, we are skeptical that the government can assert a substantial interest in discouraging consumers from purchasing a lawful product, even one that has been conclusively linked to adverse health consequences. Nonetheless, the Supreme Court has at least implied that the government could have a substantial interest in reducing smoking rates because smoking poses “perhaps the single most significant threat to public health in the United States.” FDA v. Brown & Williamson Tobacco Corp.,529 U.S. 120, 161 (2000).”
The court then rejected the FDA argument by arguing that the
“FDA has not provided a shred of evidence—much less the “substantial evidence” required by the APA—showing that the graphic warnings will “directly advance” its interest in reducing the number of Americans who smoke. FDA makes much of the “international consensus” surrounding the effectiveness of large graphic warnings, but offers no evidence showing that such warnings have directly caused a material decrease in smoking rates in any of the countries that now require them. While studies of Canadian and Australian youth smokers showed that the warnings on cigarette packs caused a substantial number of survey participants to think—or think more—about quitting smoking, Proposed Rule at 69,532, and FDA might be correct that intentions are a“necessary precursor” to behavior change, Final Rule at 36,642, it is mere speculation to suggest that respondents who report increased thoughts about quitting smoking will actually follow through on their intentions. And at no point did these studies attempt to evaluate whether the increased thoughts about smoking cessation led participants to actually quit. Another Australian study reported increased quit attempts by survey participants after that country enacted large graphic warnings, but found “no association with short-term quit success.” Proposed Rule at 69,532. Some Canadian and Australian studies indicated that large graphic warnings might induce individual smokers to reduce consumption, or to help persons who have already quit smoking remain abstinent. See id. But again, the study did not purport to show that the implementation of large graphic warnings has actually led to a reduction in smoking rates.”
There are several interesting aspects of their argument. First, they simply didn’t trust the experts. They reviewed the research literature themselves and found it lacking. Therefore, they did not make the mistake of making an argument that is based on an Appeal to Authority. However, they also claimed that in order for the government to put large warning labels on tobacco company products, the government must show that the science proves the graphic warning labels are effective in reducing smoking. That is, placing large warning images on cigarette packages violates the companies right to speak about their product because its wasting their packaging space and not preventing anyone from buying the product. However, the judges would argue that the law states that the government can apply the warning labels if the warning labels are effective.
However, the argument isn’t consistent with the degree of caution that corporations have to exert when introducing new products. That is, corporations are not required to prove that their products are entirely safe in order to bring them to market. For example, cigarette companies never had to prove that their product was safe.
A common legal example used to demonstrate that people cannot claim freedom of speech as a right if the speech harms others is that people don’t have the right to yell fire in a crowded theater because you may harm others by causing a stampede. Similarly, it could be argued that cigarette companies have no right to free speech because they are attempting to induce individuals to do something that will harm them. To be fair, the courts have made a distinction between long-term harm and short-term harm. However, it’s debatable whether that distinction applies in the current situation.
The dissenting opinion essentially argued that this opinion moved the goal post. That is, the judges are requiring a very high scientific standard before they are willing allow the government to use advertising space on products. In particular, the dissenting judge said
“the government need show only that the warning label requirement is reasonably related to its stated and substantial interest in effectively conveying this information to consumers.”
The dissenting opinion also noted that the cigarette companies had misled the public for years and purpose of the advertising was to counter that. In the video above, the cigarette companies use An Appeal to Authority to make their argument.
The majority opinion claimed that scientists misinterpreted the literature for several reasons. There reasoning was
“FDA’s reliance on this questionable social science is unsurprising when we consider the raw data regarding smoking rates in countries that have enacted graphic warnings. FDA claims that Canadian national survey data suggest that graphic warnings may reduce smoking rates. But the strength of the evidence is underwhelming, making FDA’s claim somewhat misleading. In the year prior to the introduction of graphic warnings, the Canadian national survey showed that 24 percent of Canadians aged 15 or older smoked cigarettes. In 2001, the year the warnings were introduced, the national smoking rate dropped to 22 percent,and it further dropped to 21 percent in 2002. Id. at 69,532. But the raw numbers don’t tell the whole tale. FDA concede sit cannot directly attribute any decrease in the Canadian smoking rate to the graphic warnings because the Canadian government implemented other smoking control initiatives,including an increase in the cigarette tax and new restrictions on public smoking, during the same period. Id. Although FDA maintains the data “are suggestive” that large graphic warnings “may” reduce smoking consumption, id., it cannot satisfy its First Amendment burden with “mere speculation and conjecture.” Rubin, 514 U.S. at 487”
According to CNN, Dr. Robert Block, president of the American Academy of Pediatrics said
“Today’s ruling ignores strong scientific evidence supporting the effectiveness of larger, graphic warning labels in communicating the health dangers of tobacco use,”
In other words, Dr. Block is claiming that the judges ignored evidence.
For example, in 2003 a Canadian study found
“one fifth of participants reported smoking less as a result of the labels; only 1% reported smoking more. Although participants reported negative emotional responses to the warnings including fear (44%) and disgust (58%), smokers who reported greater negative emotion were more likely to have quit, attempted to quit, or reduced their smoking 3 months later.”
However, the judges interpreted the results of the study differently. Their opinion read
“For example, the Companies noted that the Canadian data revealed no statistically significant decline in smoking rates for adolescents and adults after the introduction of similar graphic warnings, which implied that the warnings were ineffective and that FDA’s warnings would be ineffective as well.”
The opinion did not mention that Canadian smoking rates dropped to an all time low of 17% in 2010.
In 2006, an international study that included Americans found
“Smokers are not fully informed about the risks of smoking. Warnings that are graphic, larger, and more comprehensive in content are more effective in communicating the health risks of smoking.”
Psychological studies were comprehensively reviewed in 2002 and the results indicated that large warning labels would be effective in reducing smoking rates. In 2011, a new review found strong evidence that larger warnings with pictures are significantly more effective than smaller, text-only messages.warning labels were effective.
The judges made several other arguments that some readers might disagree with
“For example, the image of a man smoking through a tracheotomy hole might be misinterpreted as suggesting that such a procedure is a common consequence of smoking—a more logical interpretation than FDA’s contention that it symbolizes “the addictive nature of cigarettes,” which requires significant extrapolation on the part of the consumers. "
However, probably an even more logical interpretation than the one suggested by the court is that consumers would interpret the image as suggesting that a tracheotomy is a possibility if one develops throat cancer from smoking.
The court further argued
“And the “1-800-QUIT-NOW”number, when presented without any explanation about the services provided on the hotline, hardly sounds like an unbiased source of information.
They are unabashed attempts to evoke emotion (and perhaps embarrassment) and browbeat consumers into quitting.
While none of these images are patently false, they certainly do not impart purely factual, accurate, or uncontroversial information to consumers."
The court didn’t explain what it found to be controversial in the images.
" commercial speech only receives First Amendment protection if it is a lawful activity and is not misleading or fraudulent. 447 U.S. at 566. Neither party seriously disputes that the cigarette packaging and advertisements regulated by the Act satisfy this threshold requirement."
However, the court must know that other drugs are regulated by the FDA which has a obligation to keep harmful drugs off the market. It is always surprising that courts have consistently ignored this issue because cigarettes are a drug that is harmful and laws should not be created (e.g., giving an exception to the cigarette companies) that harm the public.
Most news articles also did not mention that the FDA was complying with a law passed by congress in order to cooperative with an International effort to curb smoking. For example, Austrailian courts ruled in favor of the Australian health service so the big warning labels will be implemented in Australia with the additional twist that the cigarette packages will be plain paper with no counter advertising from the cigarette company. The Australian argument is the same as the one made above. Individuals should not be able to advertise harmful products.
The full opinion is online.
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