Most of the nation's largest tobacco companies have sued to stop a federal law which curtails their marketing and forces them to print graphic warnings on their packages. (NYTimes, 9/1/09) The companies are insisting on their right to communicate truthful information about their products to adults who have the right to receive such information. It is the industry's desire to protect its right to speak the "truth" under the protection of the First Amendment that I find so ironic.
First, I think some disclosures are in order. I was the presiding judge over the first two major tobacco cases -- Cippolone and Haines. After numerous tries, the cigarette companies were finally successful in having me removed from the cases because of the following, single paragraph in one of my many opinions in these cases:
All too often in the choice between the physical health of consumers and the financial well-being of business, concealment is chosen over disclosure, sales over safety and money over morality. Who are these persons who knowingly and secretly decide to put the buying public at risk solely for the purpose of making profits and who believe that illness and death of consumers is an appropriate cost of their own prosperity! As the following facts disclose, despite some rising pretenders to the throne, the tobacco industry may be the king of concealment and disinformation.
The history of tobacco advertising and public relations demonstrates that it was aimed at getting people to smoke by making it appear fashionable and safe; encouraging them to continue by debunking its risks; asserting the ease of quitting and denying the existence of addiction and finally encouraging the young to take it up to replace those who were quitting (with great difficulty) or dying from the product or other unrelated causes.
The companies decry their right to discuss and publicize their potential "reduced harm" products. Most of you are too young to remember when cigarette advertisements proclaimed, by way of someone posing as a doctor, that a particular brand was good for your "T Zone" -- somewhere, as I recall, around your chest and lungs. I don't consider anyone to be a greater advocate of free speech than I. Furthermore, I note that Floyd Abrams represents some of the companies. There is no greater expert nor anyone for whom I have greater respect in this field. I make no prediction as to the outcome of the litigation. But if history is any teacher, I can think of no industry more deserving of scrutiny and strict government regulation consistent with their free speech rights guaranteed by the First Amendment.
Limits on free speech in the commercial world must be narrowly construed and directly advance a substantial government interest. Those limits should be imposed with great hesitancy, but if ever an industry deserves them based upon prior conduct, it is the tobacco industry.
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