By Christopher Robertson

The Washington Post covers a new order by DC district court judge Gladys Kessler, arising out of an old RICO case brought by the federal government, requiring that the tobacco companies publish advertisements to confess publicly that they previously lied about the safety of smoking and manipulated cigarettes to make them more addictive.  I have pulled the district court order and posted it, along with this appendix.  The order provides the exact language of the mandated advertisements, but no analysis.  Below the fold, I trace the convoluted path this case and a related case have taken through the compelled speech doctrine around the First Amendment, all thanks to a single judge on the Court of Appeals.

A. Adverse Health Effects of Smoking

A Federal Court has ruled that the Defendant tobacco companies deliberately deceived the American public about the health effects of smoking, and has ordered those companies to make this statement. Here is the truth:

• Smoking kills, on average, 1200 Americans. Everyday.
• More people die every year from smoking than from murder, AIDS, suicide, drugs, car crashes, and alcohol, combined.
• Smoking causes heart disease, emphysema, acutemyeloid leukemia, and cancer of the mouth, esophagus, larynx, lung, stomach, kidney, bladder,and pancreas.
• Smoking also causes reduced fertility, low birthweight in newborns, and cancer of the cervix and uterus.

B. Addictiveness of Smoking and Nicotine

A Federal Court has ruled that the Defendant tobacco companies deliberately deceived the American public about the addictiveness of smoking and nicotine, and has ordered those companies to make this statement. Here is the truth:

• Smoking is highly addictive. Nicotine is the addictive drug in tobacco.
• Cigarette companies intentionally designedcigarettes with enough nicotine to create and sustain addiction.
• It’s not easy to quit.
• When you smoke, the nicotine actually changes the brain – that’s why quitting is so hard.

C. Lack of Significant Health Benefit From Smoking “LowTar,” “Light,” “Ultra Light,” “Mild,” and “Natural”Cigarettes

A Federal Court has ruled that the Defendant tobacco companiesdeliberately deceived the American public by falsely selling andadvertising low tar and light cigarettes as less harmful thanregular cigarettes, and has ordered those companies to make thisstatement. Here is the truth:

• Many smokers switch to low tar and light cigarettes rather than quitting because they think low tar and light cigarettes are less harmful. They are not.
• “Low tar” and filtered cigarette smokers inhale essentially the same amount of tar and nicotine as they would from regular cigarettes.
∙  All cigarettes cause cancer, lung disease, heartattacks, and premature death – lights, low tar, ultra lights, and naturals. There is no safe cigarette.

D. Manipulation of Cigarette Design and Composition to Ensure Optimum Nicotine Delivery

A Federal Court has ruled that the Defendant tobacco companies deliberately deceived the American public about designing cigarettes to enhance the delivery of nicotine, and has ordered those companies to make this statement. Here is the truth:

∙Defendant tobacco companies intentionally designed cigarettes to make them more addictive.

∙Cigarette companies control the impact and deliveryof nicotine in many ways, including designing filters and selecting cigarette paper to maximizethe ingestion of nicotine, adding ammonia to make the cigarette taste less harsh, and controlling the physical and chemical make-up of the tobacco blend.

∙When you smoke, the nicotine actually changes the brain – that’s why quitting is so hard.

E. Adverse Health Effects of Exposure to Secondhand Smoke

A Federal Court has ruled that the Defendant tobacco companies deliberately deceived the American public about the health effects of secondhand smoke, and has ordered those companies to make this statement. Here is the truth:

∙Secondhand smoke kills over 3,000 Americans each year.

∙Secondhand smoke causes lung cancer and coronary heart disease in adults who do not smoke.

∙Children exposed to secondhand smoke are at an increased risk for sudden infant death syndrome(SIDS), acute respiratory infections, ear problems, severe asthma, and reduced lung function.

∙There is no safe level of exposure to secondhand smoke.

This decision is actually not new, but is an implementation of a decision made six years ago.  Here is the most recent opinion from a panel (consisting of judges Sentelle, Brown, & Silberman) of the D.C. Circuit, holding that the enactment of the Tobacco Control Act of 2009, which gave the FDA authority to regulate the tobacco companies, did not make the RICO case moot.  Thus, the opinion by Judge Brown sent the case back to Judge Kessler to get on with the companies’ self-flagellation.  Although Judge Brown’s opinion acknowledged that the remedy would involve speech — the order “to issue ’corrective statements’ in various media outlets about the health effects of smoking” — this opinion has no discussion of the First Amendment issues raised by such an order.

Given the 2006 law of the case and the 2012 go-ahead by the Circuit, Judge Kessler’s new order is thus not surprising.  But it is particularly interesting in the light of the decision of a different Brown panel (with judges Rogers & Randolph) this summer in another case, holding that the new FDA regulations, which required that the companies place particularly graphic warnings on cigarette packages, were “compelled speech” that violated the companies’ First Amendment rights.  There, Judge Brown wrote that, “Any attempt by the government either to compel individuals to express certain views, or to subsidize speech to which they object,  is subject to strict scrutiny.”

What’s the difference?  In one of the many trips the RICO case took to the D.C. Circuit, in 2009 another Brown panel (per curiam, with judges Sentelle & Tatel) held that the corrective statements sanction survived First Amendment scrutiny, as long as the statements were “purely factual and uncontroversial information,” which is distinct from the emotionally-charged (though factually accurate) photos that the FDA was trying to impose on the cigarette packages in 2012.

To improve the salience of their messages, companies often use emotional appeals when selling their products (think: bathtubs-in-a-field-of-flowers advertisements for Viagra).  I wonder if we will see this same distinction asserted against regulators who seek to constrain such emotional appeals, in order to facilitate more rational decision making by consumers.  It is odd to suppose that emotional appeals get more First Amendment protection than factual assertions.

Christopher Robertson is an associate professor at the James E. Rogers College of Law, University of Arizona and a research associate with the Edmond J. Safra Center for Ethics at Harvard Law School. This post first appeared at Bill of Health.