Smoking Out a Compromise: Splitting the Difference Through a Public Policy Approach to Resolving the Graphic Cigarette Warning Label Circuit Split

The imposition of graphic warning labels is necessary; the tobacco market exploits the lower class by capitalizing on their under-education regarding the negative health consequences of smoking. This injustice can be corrected by providing the most direct and clear communication imaginable to consumers to ensure they are completely informed of the peril they are placing themselves in when they choose to smoke—the graphic warning labels provide this kind of communication. This Note discusses why the FDA’s warning labels meet First Amendment constitutional scrutiny and serve a substantial governmental interest regarding the country’s public health, socioeconomic equality, and economy. Part II of this Note provides a background of the Court’s First Amendment jurisprudence. This background section discusses the three levels of constitutional scrutiny that courts have applied to cases of compelled commercial speech. Part III of this Note establishes that the strictest of these standards, the Wooley standard, is not the appropriate standard to apply to the FDA’s cigarette warning label regulations. Part IV of this Note provides that the Supreme Court may decide to apply the Zauderer rational-basis standard of scrutiny for the cigarette warning labels; the FDA regulations are constitutional under this standard. Part V of this Note provides that the Central Hudson standard is the most appropriate for reviewing the cigarette warning regulations, and further provides that the regulations are constitutional under that standard. Finally, Part VI of this Note provides a conclusion that explains that governmental impositions of commercial speech limitations are constitutional, because they are motivated by serious and imminent policy concerns