Governments May Require Factual Health Warnings in Product Ads – Court
WASHINGTON, D.C. (May 17, 2018): A federal court ruling upholding a regulation requiring cigar ads to carry a health warning opens the door to similar warnings on a wide variety of other products including sugary soft drinks, e-cigarettes, many fast food items, and even movies in which people smoke, argues public interest law professor John Banzhaf.
Banzhaf is known as the “The Man Behind the Ban on Cigarette Commercials,” and he also helped eliminate cigarette billboards, kill off Joe Camel, and require disclosure of calorie counts in many fast food and other chain restaurants.
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U.S. District Court Judge Amit P. Mehta has just ruled in favor the Food and Drug Administration [FDA], holding that it – and presumably also state and local legislative bodies – may constitutionally require ads for products to carry clear and conspicuous health warnings.
Such warnings, he said in response to a law suit brought by cigar interests claiming that such requirements violate the First Amendment, are constitutional provided that they are purely factual, and do not completely crowd out branding and other manufacturer information.
More specifically and more importantly, the court ruled that health warnings and other mandatory disclosure requirements need meet only a very simple and permissive legal standard, not the more rigorous one imposed when commercial speech is banned or otherwise restricted.
Rather than having to show that the required warning “directly advances a substantial governmental interest and [is] no more extensive than is necessary to serve that interest,” the Central Hudson test which must be met when commercial speech is restricted, the court held that a more “relaxed standard of review” under the Zauderer test applies “when the government uses a disclosure mandate to achieve a goal of informing consumers about a particular product trait,” provided “that the reason for informing consumers qualifies as an adequate interest.”
To meet this much lower standard, the disclosure requirements need only be “reasonably related to the [government’s] interest,” and not so “unjustified or unduly burdensome” as to chill protected commercial speech. As the court explains, this more relaxed Zauderer standard recognizes that there are “material differences between disclosure requirements and outright prohibitions on speech.”
This more relaxed standard which this court just ruled apply to products, and is based in turn upon a U.S. Supreme Court ruling regarding ads about lawyers’ contingency-fee rates, opens the door for mandated health-related warnings in a very wide variety of areas, says Banzhaf, suggesting that many states and even municipalities may respond by imposing new requirements.
For example, in the absence of cigarette commercials and billboards, many experts agree that smoking in movies – often shown there as a normal or even expected activity, and engaged in by heroes and heroines who serve as role models to many children – is a major factor in getting children to try, and then get hooked on, cigarettes.
While any law purporting to ban smoking in movies would face major First Amendment challenges, a simple requirement that any movie featuring smoking must make a clear and conspicuous disclosure, in its ads and coming attractions, of this purely factual matter would almost certainly be constitutional, especially in light of this new decision, suggests Banzhaf.
Such a disclosure would permit parents to shield their young children from being exposed to smoking in movies, says Banzhaf, suggesting that exposure to scenes in which people smoke may as a practical matter be more dangerous to the child’s health than witnessing traditional violence or sex-related activities.
Since sugary soft drinks (also called “liquid candy”) are still the number one source of calories and added sugars in the American diet, and the U.S. is in the midst of a growing epidemic of obesity which costs the American economy hundreds of billions of dollars, this new ruling could inspire some states to require purely factual health warnings related to this unique product which provides so many unnecessary calories, and no nutrition, to many Americans who may never have thought much about this matter.
San Francisco tried to require soda makers to attach warning labels to certain ads reading “WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay.”
The 9th Circuit ruled that it was unconstitutional but, in an unusual move, the entire circuit court recently agreed to reconsider the matter.
The health warning requirement is now more likely to be upheld based upon this new ruling, says Banzhaf, who also notes that slight changes suggested in the initial decision would probably permit health warnings which were both effective and constitutional.
Another product which many believe requires health warnings are e-cigarettes which several reports suggest may be creating an epidemic of new smokers as the product is proving very popular among young teens.
This is not surprising, says Banzhaf, since at least some of the nicotine products resemble juice boxes, whip-cream canisters and well-known candy and cookie packages like Sour Patch Kids and Nilla Wafers.
Requiring strictly factual health warnings about its known dangers, and/or mandatory disclosure about factors such as nicotine content, might go a long way towards discouraging use and saving lives in the long run, suggests Banzhaf.
Moreover, he notes, since the FDA – the federal agency with jurisdiction over e-cigarettes – has not acted to require health warnings, the states might be able to require their own since, unlike with cigarette warnings, there may be no federal preemption.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH),
2000 H Street, NW, Wash, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ jbanzhaf3ATgmail.com @profbanzhaf