Nanny state loses battle over tobacco ads

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Most people are familiar with the adage, “Hell hath no fury like a woman scorned,” but more relevant in today’s world, and certainly more accurate, is the reality that, “Hell hath no fury like a nanny-stater scorned.”

Nanny-staters are enraged that a federal court has shot down one of their pet projects — the plan to mandate that all cigarette packages include large and very graphic images developed by the Food and Drug Administration (FDA) to discourage people from smoking.

The FDA hoped that the warning labels would begin appearing on cigarette packs in September 2012. Monday’s ruling by U.S. District Court Judge Richard Leon, however, threw a major monkey wrench into the FDA’s scheme, which the Obama administration proudly announced this summer.

Clearly, the proposed warning labels are designed to shock and negatively impact tobacco users and purchasers, as well as potential smokers. One of the images is of a man holding a cigarette with smoke coming out of a tracheotomy hole in his neck. Another purportedly shows the contrast between healthy lungs and those blackened by years of smoking, noting that “[c]igarettes cause fatal lung disease.”

Because the proposed labels go beyond being informational, and cross the line into blatant, anti-tobacco advocacy, Judge Leon ruled that forcing tobacco companies to put them on cigarette packs would violate the tobacco companies’ First Amendment rights.

In further describing the court’s ruling, a Washington, D.C.-based publication, The Hill, noted that “Congress can require certain speech if the speech is factual and designed to give the public important information.” This rationale has provided the legal basis for the decades-long mandate that packaging and ads for cigarettes and other tobacco products carry warning labels.

Notwithstanding that the FDA’s actions in issuing the latest packaging mandate were pursuant to action by the Congress in 2009 — action that anti-tobacco groups and other nanny-staters hailed at the time — Judge Leon’s analysis of the First Amendment is the correct one. Only a “compelling government interest” could override the prohibition of such mandated advocacy — something the judge found to be absent in this case.

Judge Leon easily pierced the government’s smoke-screen rationale that it was merely “informing” or “educating” the public about smoking hazards. He wrote, for example, “The Government’s emphasis on the images’ ability to provoke emotion, strongly suggests that the Government’s actual purpose is not to inform, but rather to advocate a change in consumer behavior.” Common sense supports the judge’s analysis.

There is a fine, but important, line between providing information to consumers and requiring the advocacy of a specific point of view, which is clearly what the government is attempting here. Hopefully, Judge Leon’s opinion will hold up. But even if it does, there remain untold numbers of nanny-staters out there — including many on the federal judicial bench — ready and willing to find otherwise.

In other words, even though this legal victory is sweet, the war over personal choice in using tobacco products is far from over.

Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He provides regular commentary to Daily Caller readers.