The government’s latest attempt to protect consumers from the perils of tobacco use is in jeopardy. In 2009, Congress enacted the Family Smoking Prevention and Tobacco Control Act, which requires cigarette advertisements and packages to bear nine new textual health warnings and gives the FDA authority to regulate tobacco products. In 2011, in compliance with the Act, the FDA issued a regulation, known as the graphic warning requirement, which mandates that a color graphic image accompany each of the nine textual warning statements. The graphic warning requirement now faces challenges from the tobacco industry, and the ambiguities current standards present divide courts as to the constitutionality of the warnings.
Part I introduces the Family Smoking Prevention and Tobacco Control Act and the graphic warning requirement. Part II provides an overview of the protections the First Amendment affords commercial speech, specifically tobacco advertisements and labels. Part III sets out the framework for the levels of scrutiny the Supreme Court has applied to compelled and commercial speech. Part IV explains the current circuit split and analyzes the courts’ treatment of the issue. The deceptive nature of tobacco advertisements, the impact of tobacco advertising, and the effectiveness of the new warnings are described in Part V. In conclusion, this Note emphasizes the deceptive nature of past and present tobacco advertisements and urges the Court to further develop compelled commercial speech doctrine to better enable mandated disclosures of health hazards to pass constitutional muster.