                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


RJ. REYNOLDS TOBACCO COMPANY,                        )
                                                     )
LORILLARD TOBACCO COMPANY,                           )
                                                     )
COMMONWEALTH BRANDS, INC.,                           )
                                                     )
LIGGETT GROUP LLC,                                   )
                                                     )
              and                                    )
                                                     )
SANT A FE NATURAL TOBACCO                            )
COMPANY, INC.,                                       )
                                                     )
              Plaintiffs,                            )
                                                     )
                v.                                   )   Civil Case No. 11-1482 (RJL)
                                                     )
UNITED STATES FOOD AND DRUG                          )
ADMINISTRA TION,                                     )
                                                     )
MARGARET HAMBURG, Commissioner of the                )
United States Food and Drug Administration,          )
                                                     )
              and                                    )
                                                     )
KA THLEEN SEBELIUS, Secretary of the                 )
United States Department of Health                   )
and Human Services,                                  )
                                                     )
              Defendants.                            )

                                         12-
                               MEMORANDUM OPINION
                            February~,
                                    2012 [Dkt. #10 and #35]

       Plaintiffs in this case ("plaintiffs") are five tobacco companies, which include the

second-, third-, and fourth-largest tobacco manufacturers and the fifth-largest cigarette

manufacturer in the United States. Complaint ("Compl."), Aug. 16, 2011,      ~~   8-12 [Dkt.
#1]. In June 2011, defendant United States Food and Drug Administration ("FDA")

published a Final Rule requiring (among other things) the display of nine new textual

warnings-along with certain graphic images I such as diseased lungs and a cadaver

bearing chest staples on an autopsy table-on the top 50% of the front and back panels of

every cigarette package manufactured and distributed in the United States on or after

September 22,2012. See FDA, Required Warnings for Cigarette Packages and

Advertisements, 76 Fed. Reg. 36,628 (June 22,2011) ("the Rule"); see also Mem. in

Supp. of Pis. , Mot. for Summ. J. and Permanent Inj. ("PIs.' Mot."), Aug. 19,2011, at 3-5

[Dkt. #10]. Alleging that the Rule violates the First Amendment and the Administrative

Procedure Act ("APA"), 5 U.S.C. §§ 553{b)(3), 705, 706(2)(A), see Compi.          ~~   5-6,

plaintiffs moved for a preliminary injunction on August 19,2011, enjoining the

enforcement of the Rule until fifteen months after resolution of plaintiffs' claims on the

merits. See Pis.' Mot. at iii. As such, plaintiffs raised for the first time in our Circuit the

question of whether the FDA's new and mandatory graphic images, when combined with

certain textual warnings on cigarette packaging, are unconstitutional under the First

Amendment. The Court granted plaintiffs' motion on November 7,2011. See R.J.

Reynolds Tobacco Co. v. FDA, No. 11-1482,2011 WL 5307391, at *1, n.l (D.D.C. Nov.


        As I previously stated in my Memorandum Opinion granting plaintiffs' Motion for
Preliminary Injunction, although the FDA cOf}veniently refers to these graphic images as
"graphic warnings," characterizing these graphic images as "warnings" is inaccurate and
unfair as they are more about shocking and repelling than warning. See RJ Reynolds
Tobacco Co. v. FDA, No. 11-1482,2011 WL 5307391, at * 1, n.l (D.D.C. Nov. 7, 2011).
Indeed, as discussed fully in Section II.A, these images are not used to warn but rather to
deter individuals from purchasing the package. Accordingly, I will refer to them simply
as graphic images.

                                               2
                                                                                          2
7,2011). Since then both parties have moved for summary judgment on the same issues.

Upon review of the pleadings, oral argument, the entire record, and the applicable law,

the Court concludes that these mandatory graphic images violate the First Amendment by

unconstitutionally compelling speech. For that and the other reasons stated herein, the

Court GRANTS plaintiffs' Motion for Summary Judgment and DENIES the Cross-

                                3
Motion for Summary Judgment.
                                                      4
                                    BACKGROUND

    I.      Statutory and Regulatory History

            A. The Act

         The Family Smoking Prevention and Tobacco Control Act ("Act" or "the Act"),

Pub. L. No. 111-31, 123 Stat. 1776 (2009), which President Obama signed into law on

June 22, 2009, gives the FDA the authority to regulate the manufacture and sale of

tobacco products, including cigarettes. Mem. in Support of Defs.' Mot. for Summ. 1. and

in Opp'n to Pis.' Mot. for Summ. J. ("Defs.' Opp'n"), Oct. 21, 2011, at 1 [Dkt. #34].

Pursuant to that authority, Congress directed the Secretary of the U.S. Department of

Health and Human Services ("the Secretary") to "issue regulations that require color

        Plaintiffs filed their Motion for Summary Judgment [Dkt. # 10] on the same day
they filed their Motion for Preliminary Injunction [Okt. # 11].

      Plaintiffs bring both First Amendment and AP A claims. At the September 21,
2011 hearing, however, all parties agreed that if plaintiffs prevailed on their First
Amendment claim, resolution of the APA claim would be superfluous. See PI Tr. 68:10-
19 (Government), 71:17-22 (plaintiffs). Because plaintiffs prevail on their First
Amendment claim, an analysis of the AP A claim is unnecessary.

4      The full facts of this case have been amply described in my earlier opinion
granting the preliminary injunction. See R.J Reynolds, 2011 WL 5307391 at * 1-3.

                                            3
graphics depicting the negative health consequences of smoking. ,,5 See Pub. L. No. 111-

31, § 201(a) (amending 15 U.S.C. § 1333(d»; CompI.       ~   31; Defs.' Opp'n at 1. In

addition, Congress required all cigarette packages manufactured, packaged, sold,

distributed, or imported for sale or distribution within the United States to bear one of the

following nine textual warnings:

              "WARNING: Cigarettes are addictive.

              WARNING: Tobacco smoke can harm your children.

              WARNING: Cigarettes cause fatal lung disease.

              WARNING: Cigarettes cause cancer.

              WARNING: Cigarettes cause strokes and heart disease.

              WARNING: Smoking during pregnancy can harm your baby.

              WARNING: Smoking can kill you.

              WARNING: Tobacco smoke causes fatal lung disease in nonsmokers.

              WARNING: Quitting smoking now greatly reduces serious risks to your
              health." Act § 201(a) (amending 15 U.S.C. § 1333(a)(l».

       Congress required that these new textual warnings and graphic images occupy the

top 50% of the front and back panels of all cigarette packages, Act § 201(a) (amending

15 U.S.C. § 1333(a)(2», and the top 20% of all printed cigarette advertising, id.

(amending 15 U.S.c. § 1333(b)(2». It gave the FDA "24 months after the date of


        The statute also vests a certain amount of discretion in the Secretary, who "may
adjust the type size, text and format of the label statements specified in subsections (a)(2)
and (b )(2) as the Secretary determines appropriate so that both the graphics and the
accompanying label statements are clear, conspicuous, legible and appear within the
specified area." Pub. L. No. 111-31, § 201 (amending 15 U.S.C. § 1333(d».


                                              4
enactment" of the Act to issue regulations implementing the requirements of Section 201.

Act § 201(a) (amending 15 U.S.c. § 1333(d)); Compl. ~ 33. Finally, under the Act, the

new textual warnings and graphic-image labels (and the related requirements) were

scheduled to take effect 15 months after issuance of the Rule. Act § 201(b) (note on

amending 15 U.S.C. § l333).

          B. The Rule

                   1.       Proposed Rule

       On November 12,2010, the FDA submitted for public comment a Proposed Rule

unveiling 36 graphic color images that could be displayed with the 9 new textual

                                6
warnings created by Congress.       Required Warnings for Cigarette Packages and

Advertisements, 75 Fed. Reg. 69,524; 69,534-69,535 (Nov. 12,2010) (to be codified at

21 C.F.R. Part 1141); Compl.   ~~   36,38; Defs.' Opp'n at 10-11. In addition, the Proposed

Rule required cigarette packaging and advertising to include "a reference to a smoking

cessation assistance resource" and set forth related requirements for what that resource

must provide. 75 Fed. Reg. 69,564 (proposing 21 C.F.R. § 1141.16(a)); Compl.       ~   39.

Finally, as part of its preliminary benefits analysis, the FDA estimated that "the U.S.

smoking rate will decrease by 0.212 percentage points" as a result of the Proposed Rule,

75 Fed. Reg. 69,543 (emphasis added), a statistic the FDA admits is "in general not
                                             ,'
                                             I~,       I




       The proposed images were not only in color, but some were also cartoon images,
as opposed to staged photographs; and some were enhanced using either actors or
technological augmentation to achieve the desired effect. See CompI. ~ 38; Defs.' Opp'n
at 36.

                                                   5
statistically distinguishable from zero.,,7 Jd. at 69,546; see also CompI. ~ 41.

                     2.           Final Rule

       After a period of notice and comment in which the FDA reviewed more than 1,700

comments, it published a Final Rule on June 22, 2011. See 76 Fed. Reg. 36,628-36,629;

CompI.   ~   57. Of the 36 graphic images originally proposed, the FDA chose 9 for

pUblication. Compi.       ~   57. The new graphic images, which will rotate according to an

agency-approved plan, Act § 201(a) (amending 15 U.S.C. § 1333(c)(2»; Compi.            ~   30,

include color images of a man exhaling cigarette smoke through a tracheotomy hole in

his throat; a plume of cigarette smoke enveloping an infant receiving a kiss from his or

her mother; a pair of diseased lungs next to a pair of healthy lungs; a diseased mouth

afflicted with what appears to be cancerous lesions; a man breathing into an oxygen

mask; a bare-chested male cadaver lying on a table, and featuring what appears to be

post-autopsy chest staples down the middle· of his torso; a woman weeping

uncontrollably; and a man wearing a t-shirt that features a "no smoking" symbol and the

words "I QUIT." See Compi.          ~~   57, 59. An additional graphic image appears to be a

stylized cartoon (as opposed to a staged photograph) of a premature baby in an incubator.

Jd. Plaintiffs allege, on information and belief, that many of these images are



       Indeed, the FDA's estimated reduction in U.S. smoking rates decreased from
.212% in the Proposed Rule to .088% in the Final Rule. Compare 75 Fed Reg. 69,543
with 76 Fed. Reg. 36,721. See also 76 Fed. Reg. 36,724 (further explaining the "FDA's
                                                 f


estimate of a 0.088 percentage point reduction in the U.S. smoking rate"). Plaintiffs
suggest that the decrease could be attributed to the FDA considering (for the first time) a
confounding factor-the difference between Canadian and U.S. cigarette tax rates-in
the Final Rule analysis. See Compi. ~ 62.

                                                     6
technologically manipulated, 8 enhanced, or animated, or that they depict actors to achieve

the desired image. See id.   ~   59. And indeed, the FDA cited these nine images'

"salience"-defined as a warning's ability to evoke emotion-as a primary selection

criterion. 9 76 Fed. Reg. 36,639.

       In addition to being paired with one of the nine new textual warnings introduced

by Congress, each of the graphic images prominently displays "1-800-QUIT-NOW": a

telephone number the FDA selected to fulfill its own regulatory obligation to offer

smoking cessation assistance on each package. 76 Fed. Reg. 36,686-36,687, 36,754-

36,755; see also CompI.   ~~   57, 60. Based on the 15-month implementation period set out

by Congress, see Act § 201(a) (amending 15 U.S.C. § 1333), the new textual warnings

and graphic images are scheduled to take effect for all cigarette packages manufactured

on or after September 22, 2012, and for all cigarette packages introduced into commerce


       The FDA does not dispute that "some of the photographs were technologically
modified to depict the negative health consequences of smoking," although it insists that
"the effects shown in the photographs are, in fact, accurate depictions of the effects of
sickness and disease caused by smoking." Defs.' Opp'n at 36 (quoting 76 Fed. Reg. at
36,696).
9
        The Rule reads, in pertinent part: "First, many of the proposed required warnings
elicited significant impacts on the salience measures (emotional and cognitive measures),
which the research literature suggests are likely to be related to behavior change (Ref.
51). For example, the literature suggests that risk information is most readily
communicated by messages that arouse emotional reactions (see Ref. 45), and that
smokers who report greater negative emotional reactions in response to cigarette
warnings are significantly more likely to have read and thought about the warnings and
more likely to reduce the amount they smoke and to quit or make an attempt to quit (Ref.
44). The research literature also suggests that warnings that generate an immediate
emotional response from viewers can result in viewers attaching a negative affect [sic] to
smoking (i.e., feel bad about smoking), thus undermining the appeal and attractiveness of
smoking (Ref. 45 and Ref. 40 at pp. 37-38)." 76 Fed. Reg. at 36,639 (emphasis added).

                                               7
on or after October 22,2012. See Act § 201(b) (note on amending 15 U.S.C. § 1333). In

response to the Final Rule, plaintiffs filed a Motion for Preliminary Injunction, which this

Court granted on November 7,2011. Plaintiffs also filed a Motion for Summary

Judgment and Permanent Injunction on August 19, 2011; defendants responded and filed

a Cross-Motion for Summary Judgment on October 21, 2011; and oral argument was held

on February 1,2012.

                                        ANALYSIS

   I.       Standard of Review

         Summary judgment is appropriate when the movant demonstrates that there is no

genuine issue of material fact in dispute and that the moving party is entitled to judgment

as a matter oflaw. Fed. R. Civ. P. 56(a). The moving party bears the burden, and the

court will draw "all justifiable inferences" in the favor of the non-moving party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,255 (1986). Nevertheless, the non-

moving party "may not rest upon the mere allegations or denials of his pleading, but ...

must set forth specific facts showing that there is a genuine issue for trial." [d. at 248

(internal quotations omitted). Factual assertions in the moving party's affidavits may be

accepted as true unless the opposing party submits its own affidavits, declarations, or

documentary evidence to the contrary. Neal v. Kelly, 963 F .2d 453, 456 (D.C. Cir. 1992).

   II.      First Amendment Claim

         Plaintiffs oppose the placement of the Government-mandated warnings on the top




                                              8
50% of the front and back portions of their cigarette packaging. lo Pis.' Mot. at 1. In

particular, plaintiffs argue that the new Rule unconstitutionally compels speech, see

Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. o/Boston, Inc., 515 U.S. 557, 573-74

(1995); Wooley v. Maynard, 430 U.S. 705, 714 (1977), and that such speech does not tit

within the "commercial speech" exception under which certain types of Government-

mandated, informational disclosures are evaluated under a less restrictive standard, see

Zauderer v. Office o/Disciplinary Counsel o/Sup. Ct. o/Ohio, 471 U.S. 626,651 (1985);

see also PIs.' Mot. at 17-20. As a result, they argue, the Government's conduct must be

analyzed under the strict scrutiny standard. I I PIs.' Mot. at 17-24. I agree.

          A. Applicable Level of Scrutiny

       A fundamental tenant of constitutional jurisprudence is that the First Amendment

protects "both the right to speak freely and the right to refrain from speaking at all."

Wooley, 430 U.S. at 714. A speaker typically "has the autonomy to choose the content of

his own message." Hurley, 515 U.S. at 573. And, in fact, "[fjor corporations as for

individuals, the choice to speak includes within it the choice of what not to say." Pac.

Gas & Elec. Co. v. Pub. Uti/so Comm'n o/Cal., 475 U.S. 1, 16 (1986) (plurality opinion).



10    Plaintiffs do not challenge the substance of the nine new textual messages
Congress created by statute. SJ Tr. 12:10-12.
II
        The parties continue to disagree fundamentally on the applicable level of scrutiny.
While plaintiffs advocate for an application of strict scrutiny, they also argue that the
Rule/ails under any constitutional standard. PIs.' Mot. at 3. And as defendants contend
that the Rule is subject to no more than intermediate scrutiny, see Cent. Hudson Gas &
Elec. Corp. V. Pub. Servo Comm'n o/N.Y, 447 U.S. 557, 573 (1980), they also continue
to insist that the Rule withstands any level of scrutiny. Defs.' Opp'n at 13-14.

                                              9
As plaintiffs so aptly stated, although "the Government may engage in [ ] advocacy using

its own voice[,] ... it may not force others, such as Plaintiffs, to serve as its unwilling

mouthpiece." Reply in SUpp. of Pis.' Mot. ("PIs.' Reply"), Nov. 18,2011, at 1 [Dkt.

#42]; see Sorrell v. IMS Health, Inc., 131 S. Ct. 2653, 2671 (2011) ("The State can

express [its] views through its own speech. But a State's failure to persuade does not

allow it to hamstring the opposition. The State may not burden the speech of others in

order to tilt public debate in a preferred direction."). Thus, where a statute "'mandates

speech that a speaker would not otherwise make,' that statute 'necessarily alters the

content of the speech. '" Entm 't Software Ass 'n v. Blagojevich, 469 F .3d 641, 651 (7th

Cir. 2006) (quoting Riley v. Nat 'I Fed'n of the Blind ofN.C., Inc., 487 U.S. 781, 795

(1988)). As the Supreme Court itself has noted, this type of compelled speech is

"presumptively unconstitutional." Rosenberger v. Rector & Visitors of the Univ. of Va.,

515 U.S. 819, 830 (1995).

       In the arena of compelled commercial speech, however, narrow exceptions do

exist and allow the Government to require certain disclosures to protect consumers from

"confusion or deception:' Zauderer,471 U.S. at 651. Indeed, courts apply a lesser

standard of scrutiny to this narrow category of compelled speech through which the

Government may require disclosure only of "purely factual and uncontroversial

infonnation." Id. Even under this paradigm, however, compelled disclosures containing

"purely factual and un controversial infonnation" may still violate the First Amendment if

they are "unjustified or unduly burdensome." Id. Unfortunately for the defendants, the

images here neither meet the Zauderer standard, nor are narrowly tailored to avoid an

                                              10
undue burden to the plaintiffs' speech. How so?

       First, after reviewing the evidence here it is clear that the Rule's graphic-image

requirements are not the type of purely factual and uncontroversial disclosures that are

reviewable under this less stringent standard. 12 To the contrary, the graphic images here

were neither designed to protect the consumer from confusion or deception, nor to

increase consumer awareness of smoking risks; rather, they were crafted to evoke a

strong emotional response calculated to provoke the viewer to quit or never start

smoking. Indeed, a report by the Institute of Medicine-an authority chiefly relied upon

by the Government-very frankly acknowledges this very purpose. See Defs.' Opp'n at

vi; Institution of Medicine, "Ending the Tobacco Problem: A Blueprint for the Nation"

(Richard J. Bonnie ed. 2007) ("10M Report") at 290-91. According to the 10M Report,

"[i]t is time to state unequivocally that the primary objective of tobacco regulation is not

to promote informed choice but rather to discourage consumption of tobacco products,

especially by children and youths, as a means of reducing tobacco-related death and

disease." 10M Report at 291. Further, "[e]ven though tobacco products are legally

available to adults, the paramount health aim is to reduce the number of people who use

and become addicted to these products, through a focus on children and youths," and,

therefore, the "warnings must be designed to promote this objective." Jd.

       Not surprisingly the use of the graphic images accomplishes just that: an objective



12     As this Court previously stated, "the fact alone that some of the graphic images
here appear to be cartoons, and others appear to be digitally enhanced or manipulated,
would seem to contravene the very definition of 'purely factual. '" R.J. Reynolds, 2011
WL 5307391 at *5.
                                             11
wholly apart from disseminating purely factual and uncontroversial information. That

Dr. David Hammond-a researcher upon whom the Government relies-recommended

that the graphic warnings should "elicit negative emotional reactions" to convince

smokers to quit undercuts any argument that the images are purely factual. See David

Hammond, Health Warnings Messages on Tobacco Products: A Review, 20 Tobacco

Control 327, 331-32 (2011) ("Hammond Review"); Defs.' Opp'n at vi. Indeed, the FDA

measured the efficacy of the graphic images by their "salience," which the FDA defines

in large part as a viewer's emotional reaction. See Compl. ,-; 58 (citing 76 Fed. Reg.

36,638-36,639).

       Further, the graphic images are neither factual nor accurate. For example, the

image of the body on an autopsy table suggests that smoking leads to autopsies; but the

Government provides no support to show that autopsies are a common consequence of

smoking. Indeed, it makes no attempt to do so. Instead, it contends that the image

symbolizes that "smoking kills 443,000 Americans each year." Defs.' Opp'n at 42. The

image, however, does not provide that factual information. Similarly, the image of a man

exhaling cigarette smoke through a tracheotomy hole in his throat is not being used to

show a usual consequence of smoking. Instead, it is used to symbolize "the addictive

nature ofsmoking"-a fact that is not accurately conveyed by the image. Id. at 37. Put

simply, the Government fails to convey any factual information supported by evidence

about the actual health consequences of smoking through its use of these graphic




                                            12
lInages. 13
•


        The images, coupled with the placement of the toll free number, do not "promote

informed choice" but instead advocate to consumers that they should "QUIT NOW." A

telling example is the image depicting a man wearing a t-shirt that features a "no

smoking" symbol and the words "I QUIT" next to the "1-800-QUIT-NOW" phone

number. This image contains no factual information, and even the Government concedes

this image "encourag[es] cessation." Defs.' Opp'n at 43 (quoting 76 Fed. Reg. 36,656).

Likewise, the Secretary and the Commissioner of the FDA ("the Commissioner") have

acknowledged that the graphic images convey an anti-smoking message-specifically,

the images were designed to: convey that "smoking is gross"; help "encourage smokers

to quit"; "rebrand[ ] our cigarette packs"; and "dispel[ ] the notion that somehow [tobacco

use] is cool." Graphic Health Warning   u.s. Food & Drug Admin. Announcement, (Nov.
10, 2010), available at http://www.fda.gov/TobaccoProducts/NewsEvents/ucm232556.

htm; Press Briefing, Press Sec'y Jay Carney, Sec'y of Health and Human Servs. Kathleen

Sebelius, & FDA Comm'r Margaret Hamburg (June 21,2011), available at

http://www .whitehouse.gov/the-press-office/20 11/06/21 Ipress-briefing-press-secretary-

jay-carney-secretary-health-and-human-ser; News Release, U.S. Dep't of Health &

Human Servs., FDA Unveils Final Cigarette Warning Labels (June 21, 2011), available

13      Indeed, at oral argument, the plaintiffs proffered an analogy that exposes the
weakness in the Government's contention that these images are purely factual and
uncontroversial. After reciting an account of a 117 -year-old woman who smoked her
entire adult life, plaintiffs asked rhetorically: "Would it be purely factual and
uncontroversial if we were to take a picture of one of these people [like the lifelong
smoker], put [her] on our advertisements, and say 115 years old and still smoking?" [SJ
Tr.46:2-12J. Of course not!
                                            13
at http://www.hhs.gov/news/pressI2011pres/06/20110621 a.html. Thus, while the line

between the constitutionally permissible dissemination of factual information and the

impermissible expropriation of a company's advertising space for Government advocacy

can be frustratingly blurry, here the line seems quite clear.

       Rather than fit the Zauderer paradigm, "the disclosures mandated in this case are

much more similar in form and function to those at issue in Blagojevich, 469 F.3d at 643,

652." R.J. Reynolds, 2011 WL 5307391 at *6. There, the Seventh Circuit refused to

apply the Zauderer standard of scrutiny to a state law that required video game retailers

to affix a four-square-inch sticker with the number "18" (representing age 18) on any

game deemed "sexually explicit" under the statute. 469 F.3d at 643, 652. "Just as the

Seventh Circuit recognized that a compelled video-game label based on what the state

deemed to be 'sexually explicit' was 'far more opinion-based than the question of

whether a particular chemical is within any given product,' Blagojevich, 469 F.3d at 652

(referencing Sorrell), so too are the graphic images promulgated as part of the FDA's rule

a more subjective vision of the horrors of tobacco addiction." R.J. Reynolds, 2011 WL

5307391 at *6. Indeed, like the stickers in Blagojevich, the graphic images "ultimately

communicate[ ] a subjective and highly controversial message." Blagojevich, 469 F.3d at

652. The Rule, therefore, does not fit into the ,zauderer exception for purely factual and

uncontroversial information. See Pac. Gas & Elec., 475 U.S. at 15 n.l2 ("Nothing in

Zauderer suggests ... that the State is equally free to require corporations to carry the

message of third parties, where the messages themselves are biased against or are

expressly contrary to the corporation's views."). Thus, these images must withstand the

                                             14
strict scrutiny analysis the Supreme Court imposes on Government regulations which

compel commercial speech.

           B. Analysis Under Strict Scrutiny
                                            I'


       To withstand strict scrutiny, the Government carries the burden of demonstrating

that the FDA's Rule is narrowly tailored to achieve a compelling government interest.

See, e.g., A.N.S. W.E.R. Coal. v. Kempthorne, 537 F. Supp. 2d 183, 195 (D.D.C. 2008)

(citing Boos v. Barry, 485 U.S. 312, 322 (1988) and Rosenberger v. Rector & Visitors 01

the Univ. 01 Va. , 515 U.S. 819, 829 (1995)). Unfortunately for the Government, it fails to

satisfy this burden.

       First, although the Government contends that it has a compelling interest-

"conveying to consumers generally, and adolescents in particular, the devastating

consequences of smoking and nicotine addiction," see Defs.' Opp'n at 23-its "stated
                                            '.
purpose does not seem to comport with the thrust of its arguments, or with the evidence it

offers to support the Rule." R.J Reynolds, 2011 WL 5307391 at *7. To the contrary, it

is clear that the Government's actual purpose is not to inform or educate, but rather to

advocate a change in behavior-specifically to encourage smoking cessation and to

discourage potential new smokers from starting. See 10M Report at 290-91 ("It is time to

state unequivocally that the primary objective of tobacco regulation is not to promote

informed choice but rather to discourage consumption of tobacco products, especially by

children and youths, as a means of reducing tobacco-related death and disease.");

Hammond Review at 331-32 (recommending that the graphic warnings should "elicit

negative emotional reactions" to convince smokers to quit); 76 Fed. Reg. 36,633 (the

                                            15
purpose of the graphic warnings is to "discourage nonsmokers ... from initiating

cigarette use and to encourage current smokers to consider cessation"); Act § 3.9 (the

purpose of the Act is "to promote cessation to reduce disease risk and the social costs

associated with tobacco-related diseases"). The Government's reliance on the graphic

images-which were chosen based on their ability to provoke emotion, a criterion that

does not address whether the graphic images'affect consumers' knowledge of smoking

risks-coupled with the toll free number, further supports the conclusion that the

Government's actual purpose is to convince consumers that they should "QUIT NOW.,,14

Indeed, at oral argument, the Government effectively conceded this purpose when it

acknowledged: "Now, it's no secret that the Government wants people to stop smoking."

SJ Tr. 26: 17-18. Although an interest in infonning or educating the public about the

dangers of smoking might be compelling, an interest in simply advocating that the public

not purchase a legal product is not. 15 However, even if the Government's interest is in



14      The Government's interest in adv9cating a message cannot and does not outweigh
plaintiffs' First Amendment right to not be the Government's messenger. See Wooley v.
Maynard, 430 U.S. 705, 717 (1977) C'[W]here the State's interest is to disseminate an
ideology, no matter how acceptable to some, such interest cannot outweigh an
individual's First Amendment right to avoid becoming the courier for such message.").
This Court is acutely aware of the health risks of smoking. And although the
Government may want to convince consumers to stop smoking to protect their health,
plaintiffs are correct in stating that their industry should not "serve as the government's
unwilling spokesman in that paternalistic endeavor." SJ Tr. 6: 18-19.

15      Even assuming that the interest is compelling, the Rule does not achieve or further
this interest. According to the plaintiffs, the Jamieson & Romer study "demonstrates that
consumers are overwhelmingly aware of the risks of smoking and indeed overestimate
those risks, which is why the introduction of graphic warnings does not move the needle
either in terms of behavior or in terms of knowledge of the risks that the warnings
address." SJ Tr. 21:5-13; see Jamieson & Romer, What Do Young People Think They
                                            16
fact "compelling," the Rule is clearly not narrowly tailored to achieve the Government's

purpose. How so?

       As I noted previously, "the sheer size and display requirements for the graphic

images are anything but narrowly tailored." R.J Reynolds, 2011 WL 5307391 at *7.

Under the Rule, plaintiffs are forced to act as the Government's mouthpiece by

dedicating the top 50% of the front and back of all cigarette packages manufactured and

distributed in the United States to display the Government's anti-smoking message: not

to purchase this product. These dimensions alone clearly demonstrate "that the Rule was

designed to achieve the very objective articulated by the Secretary of Health and Human

Services: to 'rebrand[] our cigarette packs,' treating (as the FDA Commissioner

announced last year) 'every single pack of cigarettes in our country' as a 'mini-billboard.'

A 'mini-billboard,' indeed, for its obvious anti-smoking agenda!" Id. (internal citations

omitted). The FDA's contention that neither it nor this Court has the authority to second-

guess Congress, see R.J Reynolds, 2011 WL 5307391 at *7 n.25, even if the

congressional mandate violates the First Amendment, is an oh-too-convenient dodge.

See SJ Tr. 36:22-25; 37:13-17. As the parties have conceded, there is no evidence that

Congress even considered the First Amendment implications when drafting the Act. See

SJ Tr. 30:10-13 (defendants); 42:3-13 (plaintiffs). To say the least, implementing a Final

Rule consistent with a congressional mandate does not require a Court to hold that the

Know About the Risks o/Smoking (2001),28-30. Indeed, the Rule itself makes clear that
the warnings may cause smoking rates in the United States to decrease by O.088ro--a
rate which is "not statistically distinguishable from zero." 76 Fed. Reg. 36,721; 36,724;
36,776. The Government "therefore cannot reject, in a statistical sense, the possibility
that the rule will not change the U.S. smoking rate." Id. at 37,776.
                                            17
Rule automatically passes constitutional muster. Congress must pass laws, and the FDA

must implement final rules, that are consistent with the requirements of the Constitution.

Thus, just as the four-square-inch sticker "literally fail [ed] to be narrowly tailored"

because it "cover[ ed] a substantial portion of the box," in Blagojevich, so too must these

graphic images fail to meet the narrowly tailored requirement the Government must

demonstrate. 469 F.3d at 652.

       Finally, with respect to the content of the graphic images, it is curious to note that

plaintiffs have offered several alternatives that are easily less restrictive and burdensome

for plaintiffs, yet would still allow the Government to educate the public on the health

risks of smoking without unconstitutionally compelling speech. First, the Government

could disseminate its anti-smoking message itself, for example, by increasing its anti-

smoking advertisements or issuing additional statements in the press urging consumers to

quit smoking or both. Pis.' Mot. at 28. Although doing so might impose costs on the

Government, see Defs.' Opp'n at 22, "[c]itizens may not be compelled to forgo their

[First Amendment] rights because officials ... desire to save money." Palmer v.

Thompson, 403 U.S. 217, 226 (1971). Of course, by now it is clear that the

Government's actual concern is not the potential for added cost as the FDA recently

announced that it will be spending $600 million on a new-presumably believed to be

effective-anti-smoking multimedia campaign. See Pis.' Reply at 47. Second, the

Government could change the display requirements. Specifically, the Government could

reduce the space appropriated for the proposed "warnings" to 20% of the packaging or

require "warnings" only on the front or back of the packaging. Pis.' Mot. at 29-30.

                                              18
Third, the Government could change the content by selecting graphics that conveyed only

purely factual and uncontroversial information rather than gruesome images designed to

disgust the consumer. Id. at 30. Fourth, the Government could increase cigarette taxes.

Id. at 29. And lastly, the Government could improve efforts to prevent the unlawful sale

of cigarettes to minors. Id. Anyone of these suggestions would be less restrictive than
                                            '.
the Rule's current requirements. Unfortunately, because Congress did not consider the

First Amendment implications of this legislation, it did not concern itself with how the

regulations could be narrowly tailored to avoid unintentionally compelling commercial

speech.

      Therefore, because the Government has failed to carry both its burden of

demonstrating a compelling interest and its burden of demonstrating that the Rule is

narrowly tailored to achieve a constitutionally permissible form of compelled commercial

speech, the Rule violates the First Amendment and plaintiffs' Motion for Summary

Judgment must be, and is, GRANTED.
                                            ;.1


                                     CONCLUSION

      For all the foregoing reasons, plaintiffs' Motion for Summary Judgment [Okt.

#10] is GRANTED, and defendants' Cross-Motion for Summary Judgment [Dkt. #35] is

DENIED. An order consistent with this decision is attached herewith.




                                                    United States District Judge


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