Compelled Commercial Speech: the Food and Drug Administration’s Effort to Smoke Out the Tobacco Industry through Graphic Warning Labels

FDA’s proposed graphic warning labels for cigarette packages have been scrutinized for potentially violating the First Amendment’s free speech clause. This article addresses the distinction between the commercial speech and compelled speech doctrines and their applicability in analyzing the constitutionality of the labels. The government’s position is that the labels evoke an emotional response and educate consumers, while tobacco companies argue that the labels forcibly promote the government’s message. Two federal appellate courts, applying different legal standards, have arrived at different conclusions. This article advocates that the Supreme Court, if faced with review of the labels, should apply strict scrutiny and declare the labels unconstitutional.