Government May Be Violating Tobacco Companies' 1st Amendment Rights

 

by WALTER BRASCH

 

 

A controversial Supreme Court decision less than two years ago could have the unintended consequence of significantly reducing the government's 46-year campaign against cigarettes.

In a 5–4 decision, largely along political lines, the Supreme Court ruled in Citizens United v. Federal Elections Commission (October 2009) that not only were parts of the Bipartisan Campaign Reform Act of 2002 (also known as the McCain–Feingold Campaign Reform Act) unconstitutional, but that corporations and political action committees enjoyed the same First Amendment rights as private citizens.

The government's anti-smoking campaigns, most of them the result of a combination of executive department and Congressional action, essentially have three major parts: anti-tobacco advertising and public service messages, warning labels on cigarette packs, and the outright ban on several forms of tobacco company advertising.

 

Government Advertising

 

Because the First Amendment applies only to governmental intrusion upon free expression, when the government creates advertising (whether TV ads or pamphlets), there can be no significant First Amendment issues. There may be some recourse, however small, in suits against use of taxpayer funds for political purposes, similar to the government's role during the George W. Bush administration in forcing anti-abortion education upon women and health clinics.

 

 

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The anti-smoking campaign had begun with the 1964 Surgeon General's report that there was a strong correlation between smoking, lung cancer, and chronic bronchitis.. The following year, Congress passed the Cigarette Labeling and Advertising Act that required every cigarette pack to have a health warning: "Caution: Cigarette Smoking May be Hazardous to Your Health." The Public Health Cigarette Smoking Act of 1969,  taking effect two years later, strengthened the wording on cigarette labels to: "Warning: The Surgeon General Has Determined that Cigarette Smoking is Dangerous to Your Health."

However, the labels had minimal effect on reducing smoking. In 1984, unwilling to face political consequences from an outright ban, such as it enacted against any form of marijuana, Congress passed the Comprehensive Smoking Education Act that required even stronger messages on each pack.

Last week, the Food and Drug Administration, acting within authority of the Family Smoking Prevention and Tobacco Control Act of 2010, ordered all cigarette manufacturers to include nine new designs on a rotating basis on all cigarette packs. The designs take up the top half, both front and back, of every pack. Several of the messages are medically-supported statements that tell users that cigarette smoking causes cancer. One of the graphics is a pair of cancerous lungs next to a pair of non-cancerous lungs. Another label shows a set of rotted teeth. Another shows smoke coming from a tracheotomy hole.

The FDA also requires that government-approved messages appear on one-fifth of every print ad.

Based upon interpretation of the Citizens United case, it would not be an unreasonable stretch to argue that the newly-required messages, with graphics and text, place an undue burden on a corporation's rights of free speech by restricting their own message to less than half. Another argument could be made that by forcing the tobacco companies to accept pre-determined text and graphics is de facto government intrusion upon the rights of free expression.

           

Tobacco Company Advertising

 

The largest concern for First Amendment consideration is in the area of the federal government imposing restrictions upon advertising and information messages.

In 1967, the Federal Communications Commission, citing the Fairness Doctrine, required radio and TV stations that aired paid ads from tobacco companies to run anti-smoking ads at no cost. Unwilling to give up five to ten minutes a day to unpaid advertising, the stations began "voluntarily" dropping cigarette advertising.

The Public Health Cigarette Smoking Act, which had changed the text of warning labels, also banned cigarette advertising on radio and television. In a concession to the tobacco companies, Congress permitted the law to take effect on Jan. 2, the day after the televised football bowl games. The effect of the law was a loss to radio and television stations of about $200 million a year in cigarette advertising, and a significant increase in advertising in newspapers, magazines, and billboards—and not much reduction in smoking.

A 1991 study in the Journal of the American Medical Association concluded that the cartoon character Joe Camel, advertising mascot for Camel cigarettes, was recognized by 3- to 6-year-olds almost as much as they recognized Mickey Mouse and Fred Flintstone. The AMA charged that R.J. Reynolds, manufacturers of Camel cigarettes, had targeted children; the company denied the charges, but eventually settled the lawsuit for $10 million, the funds to go to anti-smoking campaigns.

In 1998, the Tobacco Master Settlement Agreement was the result of years of litigation and negotiation between the four largest tobacco companies, which controlled about 97 percent of all domestic sales, and 46 state attorneys general; four states had already settled. That agreement exempted the companies from class-action tort liability by citizens filing against the companies for health effects from smoking. The federal government also agreed to provide subsidies to tobacco farmers to cover losses based upon reduction of demand for their product. In exchange, the tobacco companies agree to provide $365.5 billion, with most of the funds going to the states for anti-smoking campaigns, and to allow FDA regulation. Among other provisions, the tobacco companies agreed to cut back advertising and sponsorship of activities, especially those that targeted youth. Because this was a civil case settlement, First Amendment concerns were rendered moot.

However, the Family Smoking Prevention and Tobacco Control Act of 2010 is a government-imposed control that brings to question distinct First Amendment concerns. That Act bans tobacco companies from sponsoring all sports and cultural events, which could loosely be interpreted as a violation of the right of association, not specifically mentioned in wording in the First Amendment but extended by the Supreme Court decisions involving First Amendment guarantees. The Act further bans tobacco companies from displaying all tobacco-related images, including their logos, on any apparel, and also requires most advertising to be black lettering on a white background. Both actions are probable First Amendment violations.

A critical side issue melds labels with the media. It would be nearly impossible for any medium to show anyone with a cigarette pack, whether in news or entertainment, without also showing the government's message. Any attempt by the government to regulate what appears on screen or in print would violate the First Amendment.

Without the Citizens United decision, the government's rights to regulate corporate advertising would probably not have significant basis for challenge. With that decision, tobacco corporate entities suddenly have a case.

 

[This column is meant to be a general overview and not a definitive analysis or detailed case study of possible First Amendment violations of government-imposed sanctions against tobacco companies. Dr. Brasch, professor emeritus of mass communications and journalism, is a specialist in First Amendment and contemporary social justice issues. His latest book is Before the First Snow: Stories from the Revolution.]

 

         

Weekly Pulse: The New Hunger Epidemic, Making CPCs Come Clean, and Smoking Hipsters

by Lindsay Beyerstein, Media Consortium blogger

As some Americans obsess over whether to brine or deep-fry their Thanksgiving turkeys, others are going hungry. Seth Freed Wessler reports for ColorLines that 50 million Americans went hungry in 2009, according to the latest figures from the U.S. Department of Agriculture.

Astonishingly, more than 36% of female-headed households suffered from food insecurity last year, in spite of a massive expansion of federal food stamp benefits as part of the economic stimulus. Forty-two million families received food stamps last year, 10 million more than the year before. Congress gutted the food stamp program this summer. If something isn’t done, families of four will lose $59 a month in food stamp benefits at the end of 2014. At the time of the cuts, House Democrats promised to restore food stamp benefits during the lame duck session of Congress, but Freed notes there’s been little sign recently that they plan to follow through on the promise.

Making Crisis Pregnancy Centers come clean

The New York City Council is preparing to vote on the legislation to force so-called “crisis pregnancy centers” (CPCs) to disclose that they are not health care facilities and that they do not provide birth control or abortions. CPCs are anti-choice ministries that deliberately mimic abortion clinics in order to trick women who might be seeking abortions. It’s all a ruse to bombard these women with false information about abortion under the guise of health care. As we discussed last week in the Pulse, CPCs also serve as incubators for more extreme forms of anti-choice activism, from clinic obstruction to violence.

In RH Reality Check, Dr. Lynette Leighton explains why she supports New York City’s proposed bill to require so-called “crisis pregnancy centers” to disclose that they aren’t real clinics staffed by health care providers:

As a family physician, I provide comprehensive health care for all of my patients, including safe abortions for women who decide to end a pregnancy. I’ve cared for many women who came to me in crisis when they learned they were pregnant. The last thing my patients need is to be misled by anti-abortion organizations masquerading as health clinics. I’m strongly in favor of the New York City bill requiring crisis pregnancy centers to disclose that they do not provide abortions or contraception, or offer referrals for these services.

New York CPCs are claiming that the requirement to disclose violates their freedom of speech, Robin Marty notes in RH Reality Check. In other words, they are claiming a First Amendment right to bait and switch. The executive director of the New York Civil Liberties Union (NYCLU) is scheduled to testify before the City Council that the free speech claim is baseless.

See you in court!

In other reproductive rights news, the Center for Reproductive Rights took the FDA to court on Tuesday over access to the morning after pill. The FDA has been ignoring a court order to make emergency contraception available over the counter to women of all ages, and the Center is going to court to spur the agency to comply, Vanessa Valenti reports for Feministing.

Look at this smokin’ hipster

Tobacco giant R.J. Reynolds is courting hipsters with a new “Williamsburg” cigarette, Brie Cadman reports for Change.org. “[Smoking Camels is] about last call, a sloppy kiss goodbye and a solo saunter to a rock show in an abandoned building… It’s where a tree grows,” according to the online ad copy. Mmm, kissing smokers.

It’s all part of an online marketing campaign in which users are invited to guess where brand mascot Joe Camel will show up next week. Interestingly, the contest’s name is “Break Free Adventure,” a twist on the Camel brand’s “Break Free” tagline. Odd that they’d pick a slogan usually associated with quitting smoking, rather than feeding the addiction. Those hipsters sure love irony.

Blowing the whistle on health insurers

On Democracy Now!, health insurance executive turned whistleblower Wendell Potter predicts that the Republicans will back off their grandiose campaign promises to repeal health care reform and instead try to dismantle the bill’s provisions that protect consumers. Potter notes that health insurers are major Republican donors, and that parts of the law are very good for insurers, notably the mandate forcing everyone to buy health insurance.

Apparently, some true believers haven’t gotten the memo. Steve Benen of the Washington Monthly notes that some Republican members of Congress are still gunning to shut down the government over health care reform and other spending.

This post features links to the best independent, progressive reporting about health care by members of The Media Consortium. It is free to reprint. Visit the Pulse for a complete list of articles on health care reform, or follow us on Twitter. And for the best progressive reporting on critical economy, environment, health care and immigration issues, check out The Audit, The Mulch, and The Diaspora. This is a project of The Media Consortium, a network of leading independent media outlets.

 

 

What Two Presidents, A Cigarette, A Wheelchair, and the Media Have in Common

It has been fashionable to compare President Barack Obama to many of his predecessors. Liberals, facing the toughest midterms since 1994, have taken to recalling the presidencies Bill Clinton and Ronald Reagan – two men who faced similar challenges during the same parts of their terms, yet ended their terms with high approval ratings and respected legacies. Conservatives prefer the example of former president Jimmy Carter.

In the early days of the Obama presidency, it was also rather fashionable to measure Mr. Obama against another president: the late Franklin Delano Roosevelt. Nowadays this comparison is less used. Mr. Obama and Mr. Roosevelt, however, do have at least one interesting similarity – and it is a similarity few talk about.

It begins with Mr. Obama. The current president is a consistent consumer of the tobacco industry’s products. In other words, the president smokes, and he does so regularly. If rumors are to be believed, after a long period of attempting to quit, the pressures of the highest office have caused the president to smoke more frequently than ever.

Not many people know this fact. Indeed, there is not a single known picture of Mr. Obama smoking while president; most of the pictures that do show him smoking are actually photoshopped images.

One might wonder what this has to do with Mr. Roosevelt. The answer is that Mr. Roosevelt, like Mr. Obama, had a personal weakness which in no way affected his capacity to be president, but which at the same time was viewed unfavorably by many Americans.

Mr. Roosevelt’s story is more well known. In 1921, at the age of 39, the future president contracted polio while vacationing in Canada. The disease left the president paralyzed from waist down and unable to walk.

As president, however, Mr. Roosevelt took pains to hide his disability from the public. In public appearances, the president never appeared in a wheelchair; to this day there exist only a few pictures of a wheelchair-bound Roosevelt. The media cooperated willingly, just as it does with Mr. Obama today. Whether Mr. Roosevelt was paralyzed or not didn’t really matter; he was still a fine president.

It is commonly held that the modern media no longer accords presidents the trust and privacy which they held in Roosevelt’s time, especially after the Watergate scandal. While the media hid JFK’s affairs from the public, it did not do the same for Mr. Clinton.

Yet, as the example of Mr. Obama’s smoking indicates, this is not entirely true. Just as the media played a willingly accomplice to FDR in hiding his paralysis from the public, it does the same today with the smoking habits of Mr. Obama. Even Fox News doesn’t run many stories about the president’s vice.

All in all, this constitutes a net positive. When Mr. Roosevelt was president, his physical condition had no bearing upon his abilities as commander-in-chief. The same holds true for Mr. Obama.

--Inoljt, http://mypolitikal.com/

 

 

Tobacco Companies to Africa: Thank You For Smoking

We just got on the ground in Tanzania, only to read in all the papers about how the American Cancer Society just released a new report stating that Africa faces a surge in cancer related deaths due to smoking. The report says that more than half the continent will double its tobacco use within 12 years.

With smoking on the decline at home in the United States - and strong laws being passed from Britain to Japan - cigarette manufacturers have been tapping markets aggressively in the developing world. Tobacco manufacturers are aggressively advertising here all over the continent (with little education about health related risks or the impact of second hand smoking to combat it).

As we traveled in Kenya, we were pleased that the country has a national smoke-free policy. But unfortunately, Kenya is the exception rather than the norm. Only Niger and South Africa have similar policies. We will be following this trend as we travel throughout the continent.

Follow Bernard and Danielle's travels throughout Africa by visiting www.BorderJumpers.org

There's more...

A TN soldier has a small wish.

I know this is not the normal content for MYDD, but please allow me this one tiny small, off topic type diary. I am sure there are many readers who are former millitary, and have spent many months away from home wishing and dreaming for something that makes them feel just a little better, and maybe makes the days go by a little easier. If one is not an ex-military person, I am sure most have had a family member, friend or co-worker that has been.

So, here I go with my little story/diary, maybe some will want to help out.

A TN Soldiers need in Iraq.
There is a 25 year old TN soldier sitting in Iraq, dreaming of some CAMEL Silver or Light Cigaretts. It seems the PX does not carry his brand, only menthol. To a smoker, I guess that is a big difference.

I am not a smoker and know little more about them, then you light one end and inhale smoke from the other end.

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Diaries

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