Holy Smokes! Can the Government Compel Tobacco Companies to Engage in Inflammatory Commercial Speech?

In 2009, President Obama signed the Federal Smoking Prevention and Tobacco Control Act, permitting the FDA to include textual and photographic warnings about the perils of smoking on cigarette packs. The health risks of cigarettes are well known by the American people. Courts are split, however, on whether the inclusion of these warnings violates First Amendment protection of freedom of speech. This Note examines the history of America’s regulation of the tobacco industry. It then analyzes the different conclusions reached by the Sixth Circuit and D.C. Circuit on the constitutionality of these warnings, scrutinizing the tests that each court used. Finally, this Note argues that, if the Supreme Court chooses to resolve this circuit split, it should use a modified version of the D.C.Circuit’s test. If this test is applied, the Supreme Court will find that mandating such warnings on cigarette packs is unconstitutional.

The full text of this Note is available to download as a PDF.