This post was authored by Sam Halabi, J.D., M.Phil., Assistant Professor, University of Tulsa College of Law.
What Does it Mean to Inform?
In response to the graphic warnings released by the U.S. Food and Drug Administration on June 21, 2011, tobacco firms have asserted that the warnings violate their First Amendment rights by forcing them to say something they don’t want to about their products and deprive them of their Fifth Amendment rights because the warnings “take” 50% of the front and back panels of a cigarette pack without paying for the space (or the trademarks that appear there). Both theories share an underlying theory about the nature of the government’s interest in the regulation of tobacco products in general and cigarettes in particular: that the interest extends only so far as to “inform” an adult consumer about product risks.
That theory, woven through the longer catalogue of tobacco manufacturer complaints about the Family Smoking Prevention and Tobacco Control Act, is actually right on the mark. Government should care about informing adult consumers. But, if the definitions of “inform” or “information” are drawn as narrowly as cigarette manufacturers propose, courts will endanger the comprehensive approach Congress deemed necessary to address the social costs cigarettes impose and the tactics cigarette manufacturers use to promote consumption, especially among adolescents. According to cigarette manufacturers, judges should construct an imaginary world where a consumer (who very probably looks like the judge him or herself) stands in front of a single shelf in a store, in front of a row of cigarette packs, all of which contain the same well-known dangerous ingredients. Again, according to the manufacturers, the judge should imagine the state with the power to write directly on each cigarette pack the least burdensome, factual characteristics about cigarettes – milligrams of nicotine, milligrams of tar, trace amounts of radioactive metals, etc. Perhaps the government might also be able to write general warnings about the health implications of smoking. More than that, the state has violated the freedom of speech.
Few would dispute that lists of ingredients are, in fact, information. Yet there is much more to what constitutes both information and what informs consumer decisions. A blog post is not the place to exhaust all aspects of information, the study of which pervades fields as diverse as biology, economics, physics, political science, psychology and sociology. For purposes of the limited debate on graphic health warnings intended to inform consumers about smoking-related risk, I wish to examine only three: salience, disinformation and noise.
Salience: There is simply no agreement in the scientific and scholarly communities about what happens in a person’s mind when they see the words “disease” or “death” on a cigarette package. Manufacturers, offering up evidence they frequently paid for, will say that consumers overestimate the risks of cancer or heart disease from smoking. The consumer is “informed” and not only understands but accepts the risks of smoking. For a number of reasons, however, people are bad scientists. Overestimating the risk of cancer in the cigarette smoking population, for example, does not mean you actually believe that you will be the one to develop cancer, heart disease or suffer a stroke. Smoking-related illnesses often take years or decades to develop, leaving the smoker to believe that he or she has dodged an unlucky fate right up until the point of diagnosis. Certainly, the words “disease” and “death” do a poor job of communicating the emotional anguish, pain and guilt those suffering from smoking-related disease experience. Informing people about the risks of smoking means giving them that information at the point of sale, at the point of actually choosing and consuming the product; not in speculative, and, ultimately, ineffective small-print messages that tobacco manufacturers buried in their trademarked color and diagram schemes.
Disinformation: Cigarette manufacturers celebrated the introduction of filters and introduced the words “mild,” “light”, “ultra-light” and similar terms into their brands with the explicit intention to keep smokers smoking; to stop smokers from quitting; and to encourage people, especially young people, to start smoking.[i] Both scientific and judicial findings have shown that by making these false claims, tobacco firms gave smokers an acceptable alternative to quitting smoking, as well as an excuse for not quitting.[ii] The Family Smoking Prevention and Tobacco Control Act eliminated the more egregious forms of these misleading descriptors, but others are certain to take their place. More importantly, cigarette manufacturers tied their implied health messages to color and diagram schemes that still convey the old information. Now, when consumers request “Camel Lights,” they are presented with “Camel Blues” and if they request “Marlboro Lights” they are presented with the familiar white and gold package that, as the law requires, no longer displays the word “Lights.” Large graphic warnings represent a way to protect consumers from the disinformation which has long characterized cigarette and smokeless tobacco products and will continue to do so even under tighter regulation.
Noise: Cigarette packs are beautiful. They should be; cigarette manufacturers and their associated advertisers and marketers spend billions of dollars in order to know how the smallest changes in visual display inform the consumer (often the adolescent consumer) about the experience of saying the brand’s name (often a color) to a store clerk, taking the package out of a pocket or purse and setting it on a table for others to see, and, certainly, the potential for the product to be dangerous. When revising Camel’s product packaging in the late 1970s, researchers found that “refinements in the Package consist[ing] mainly of increasing the amount of white space on the pack and lightening the brown color tones . . . [gave] the revised package the appearance of reduced strength.” This was important in turn to promote the product’s masculinity, youth and ruggedness. Overcoming the elaborate visual displays of colors, diagrams and verbal (“Aromatic”, “Robust”, “Premium”) and non-verbal cues is the objective behind large graphic warnings.
When U.S. District Judge Joseph H. McKinley, Jr. stated that the “government’s goal in adopting large graphic warnings is . . . to ensure that the health risk message is actually seen by consumers in the first instance,” he gave one form to the government’s interest in informing consumers about health related risks. If his words are read too narrowly – for example, to suggest that the government may only adopt warnings of the minimum size necessary to be “seen” – then it will signal serious problems both for effective tobacco control in the U.S. and for proper deference to the legislative branch. Congress intended to inform consumers about risks cigarette manufacturers are extensively trained to distort, shape and minimize. Information – in its broader and more meaningful sense – is the larger interest that should enjoy protection in U.S. courts.
[i] See United States v. Philip Morris USA, Inc., et al., 449 F. Supp.2d 1 (D.D.C. 2006) (in which the U.S. government brought a RICO claim for false representations regarding nicotine levels in “light” and “low” tar cigarettes).
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