Free Speech Causes Cancer – by Chris Gustafson

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Charles Cameron, a writer for The Atlantic wrote in 1956 that “if it has not been proved that tobacco is guilty of causing cancer of the lung, it has certainly been shown to have been on the scene of the crime.” While the idea that smoking causes cancer is fairly common knowledge these days, he wrote that when nearly half of Americans smoked and the only ones who were truly aware of the link to cancer were those within the tobacco industry itself, and they wanted to keep it that way.

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Marlboro packaging found throughout the United States

Things changed in 1956, when the United States Surgeon General and the U.S. Food and Drug Administration (FDA) officially declared that there was a link between tobacco consumption and certain cancers, and that smoking greatly increased your chance of being diagnosed with lung cancer. The next step after this revelation was to reduce the prevalence of smoking in the country as much as possible and as quickly as possible. This eventually led to the United States being the first country in the world to require cigarette packaging contain warnings on the effects of smoking.

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One of four standard warnings required on cigarette packages sold in the United States

Any regular smoker or a friend of one can almost certainly tell you that they’ve seen the warnings that the Surgeon General requires on packages, but I’m not convinced one of them would tell you that they thought about it for more than a few seconds after first seeing it. And that’s what this post is about, how packaging can affect consumer activities, and how countries are trying to reduce smoking prevalence while at the same time not infringing upon company’s rights.

During the first day in Dublin it was evident that litter was a problem for the city, and while that’s not unusual for a city of its size, one thing did stick out in the litter, and that was the cigarette packaging. Instead of just seeing a big Marlboro or other brand’s logo (which were still present), I saw a mother blowing smoke into her young child’s grimacing face. It was clear that the Irish government was taking a much stronger approach to ending its smoking epidemic compared to the United States.

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Littered cigarette package in Dublin, displaying warning label required by Irish government

Or so I thought. After seeing these gruesome packages for the first time I decided to research them more thoroughly, and discovered that the United States had in fact tried to implement an almost identical campaign. In fact, not only the United States, but other nations such as France, Australia, Germany, Canada and many more.

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Proposed warning label for US cigarette packages

The United States Congress passed the Family Smoking Prevention and Tobacco Control Act in 2009. The act granted the FDA with far more power to regulate the tobacco industry within the U.S. Following the passage of the act, the FDA proposed a new labeling requirement for cigarettes that would mimic what is found in Ireland and other nations, or what is called “plain tobacco packaging”. These labels don’t allow for large corporate logos, are designed to be almost identical, and display graphic warnings showing the effects that smoking can cause. All of these design characteristics are there to help people with an addiction quit, and more importantly, make sure those who don’t currently smoke, never start.

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Another label proposed by the Food and Drug Administration

Now no new regulation in the United States that covers an entire industry would be complete without a massive lawsuit from members of said industry, and to nobody’s surprise, the tobacco industry was not going to go quietly into the night. A group of large tobacco companies, including R.J. Reynolds and others, sued the U.S. government to have the rule blocked or overturned by a federal court. While they originally lost in the U.S. District Courts, the tobacco industry prevailed within the appeals process. The reasoning? The appeals court decided that the new packaging went beyond simple warnings, and instead was too limiting and would violate the company’s right to free speech.

That’s the main difference between these nations that were able to pass these regulations and the United States when it comes to commercial advertising. Unlike in Ireland and most other nations, the First Amendment of the U.S. Constitution and its sweeping protections of free speech, don’t just apply to citizens, but corporations as well.

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Infamous quote from 2012 Republican Presidential Candidate Mitt Romney

This fact has come up many times in the American political sphere, where corporations and unions can spend massive amounts of money on political campaigns under the guise of free speech, but for the most part it seems to go unnoticed in advertising.

That’s not the only way that these company’s attack this kind of law however. Australia recently started requiring plain tobacco packaging, but it was not easy to actually implement for the nation. Phillip Morris International, owners of the brand Marlboro, have filed several lawsuits against the nation, and even enticed other nations themselves to file claims with the World Trade Organization. The John Oliver skit below goes into extreme detail (as usual) about the Australia case in particular.

Smoking rates in Ireland continue to fall, down to 23% in 2017 from 29% in 2015. And while the United States has a lower rate at 15.1%, it has stayed stagnant for the last 15 years, which is in part why the FDA has been pushing for new labels.

Free speech protections under the First Amendment are one of the things that have made America one of the greatest nations in history, and the ability to freely speak your mind, question your government publicly, and sustain a free and independent press are assets that must be cherished. The case of cigarette package labeling provides an insight into how our government must toe the fine line between infringing the rights of individuals and corporations, and “promoting the general welfare” of its people. This is a much easier process for other countries with more strict speech laws, but we as Americans must ask ourselves where we want to draw that line as a nation.

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