Tobacco companies are pulling out the big guns in their quest to stop the U.S. Food and Drug Administration's new graphic warnings for cigarette packaging. On Tuesday, a group of four companies filed a lawsuit with the U.S. District Court for the District of Columbia, charging that the scary new labels violate the First Amendment because they go far beyond a simple factual warning about the risks of tobacco. One of those companies, Lorillard, is being represented by Floyd Abrams. The country's top First Amendment lawyer, Abrams is known for everything from representing The New York Times in the Pentagon Papers case to, most recently, representing Senate Minority Leader Mitch McConnell in the landmark Citizens United campaign finance case. Adweek spoke with Abrams about the tobacco suit and his involvement in it Wednesday.
Adweek: How is this case different than the earlier suit filed by tobacco companies? [That case was already decided; the tobacco companies won on some points but lost others. It is currently on appeal.]
Abrams: The earlier case dealt with a large number of questions about the constitutionality of the [Tobacco Control Act] passed by Congress. This deals with the regulations imposed by the U.S. Food and Drug Administration involving the particular pictures the FDA has chosen. It is far more concrete than the litigation that is currently in the courts in Kentucky. This case is a challenge to the text, pictures, and the size of the government's message on the cigarette packages.
Why take a case representing a client with the kind of bad reputation that the tobacco companies have?
(Laughs.) I don't choose my clients in First Amendment cases based on public approval. It seems to me this is a case with a larger potential impact than the particular impact on cigarette companies. The real issue is whether the government can require an entity that makes a lawful product to emblazon on its package a message which screams out not to buy it. U.S. Secretary of Health and Human Services Kathleen Sebelius put it well. The message she wanted to get out was that smoking was gross. That is a message that the government can put out in a variety of ways. The government also has the power to require warnings, which it has done for many years. [These pictures] go way beyond that in forcing an entity to urge the public not to buy its product.
What implications does this case have for other products?
[The government] could do this for alcohol or even products with high amounts of sugar, which lead to diabetes. There are products that by their nature pose dangers to those that use them. From a First Amendment perspective, the core legal issue should not be decided on the basis of what product is involved, but what the legal principle is.
You've compared the proposed warnings to a "mini-billboard," and said that's unconstitutional where a simple warning isn't. Where do you draw the line?
That was the language FDA Commissioner Margaret Hamburg, M.D., used when she said the warnings are intended to ensure that every single pack of cigarettes will become a mini-billboard for the government's anti-smoking message. They aren't allowed to do that.
The Supreme Court ruling recently ruled in favor of advertisers in the IMS Health v. Sorrell. Does that foreshadow how the court might rule in this case?
The Supreme Court said in so many words that the state can express its view through its own speech, but that a state's failure to persuade does not allow it to hamstring the opposition.
Will you win?
I avoid making predictions.