Jonah Patel
While the Ninth Amendment of the US Constitution states that the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people, there is no explicit mention of smoking as a protected right. However, tobacco companies and advocates for public health have debated the constitutionality of regulations and public health measures aimed at tobacco control, often invoking the First Amendment. This has resulted in a complex legal landscape where the purpose and mechanism of new regulations must be carefully considered to avoid potential First Amendment issues.
| Characteristics | Values |
|---|---|
| Amendment that protects smoking | First Amendment |
| Amendment that protects certain rights of the people | Ninth Amendment |
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What You'll Learn
Smoking and the First Amendment
Smoking is a highly regulated activity in the United States, with various laws and regulations aimed at curbing its consumption. While the First Amendment protects freedom of speech and expression, it does not provide absolute protection for tobacco companies or smokers.
In 1998, tobacco companies settled with states, agreeing to certain restrictions on tobacco advertising and requiring consumer health warnings on their products. This settlement came about due to lawsuits alleging false advertising and the failure to disclose information about the health effects and addictive nature of tobacco products. The Master Settlement Agreement led to the abandonment of advertising campaigns like the Marlboro Man and Joe Camel, which were seen as targeting minors and glamorizing smoking.
The Family Smoking Prevention and Tobacco Control Act, signed into law by President Barack Obama in 2009, gave the Food and Drug Administration (FDA) direct authority to regulate tobacco products to improve public health. This act made changes to cigarette warnings, requiring nine new specified verbal warnings, including the well-known "Smoking can kill you." However, a federal judge blocked some provisions of the act as unconstitutional restrictions on commercial speech, leading to an ongoing legal battle.
While tobacco companies have challenged some regulations as violations of their First Amendment rights, courts have generally upheld the government's authority to regulate tobacco. For example, in 2024, a court upheld the requirement for graphic warning images on cigarette packages, stating that it did not breach the First Amendment. The selection of the standard of review is key in these cases, with courts examining whether regulations achieve their intended purpose without violating the First Amendment.
Overall, while the First Amendment is considered in tobacco control regulations, public health concerns and the need for accurate information about the dangers of smoking take precedence. Regulations such as bans on smoking in public places, increased taxes, and raising the legal age for tobacco use are all free from First Amendment concerns and are implemented to improve public health outcomes related to tobacco use.
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Supreme Court litigation
While there is no direct mention of smoking being protected by the 9th Amendment of the US Constitution, there have been several Supreme Court cases that have considered the constitutionality of smoking-related regulations, particularly concerning the First and Eighth Amendments.
One notable case is R.J. Reynolds Tobacco Company v. FDA, which challenged certain provisions of the Family Smoking Prevention and Tobacco Control Act of 2009. This Act gave the Food and Drug Administration (FDA) the authority to directly regulate tobacco products to improve public health. However, a federal judge blocked some key provisions, including enhanced cigarette package warnings and graphic images, as unconstitutional restrictions on commercial speech under the First Amendment. The judge applied a "strict scrutiny" test, finding that the regulations were not narrowly tailored to the government's compelling interest in public health. This case set a precedent for scrutinizing smoking regulations under the First Amendment.
Another case, Helling v. McKinney, addressed the Eighth Amendment rights of prisoners exposed to second-hand smoke. William McKinney, an inmate in the Nevada State prison system, was exposed to constant second-hand smoke due to his cellmate's heavy smoking and the lack of a formal smoking policy in the prison. McKinney argued that this exposure caused immediate health issues and filed a complaint alleging civil rights violations. The Ninth Circuit and the Supreme Court agreed with McKinney, holding that prisoners could claim cruel and unusual punishment based on the potential future health effects of second-hand smoke exposure. This case established that protecting inmates from environmental tobacco smoke falls under the Eighth Amendment's protection against future harm.
These cases demonstrate the complex interplay between public health regulations and constitutional rights in the context of smoking. While the Supreme Court has considered challenges to smoking regulations under the First and Eighth Amendments, the litigation has focused on specific aspects of smoking-related laws and their potential infringement on free speech and cruel and unusual punishment, rather than a direct protection of smoking as a right.
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Public health regulations
While the Ninth Amendment of the US Constitution states that the "enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people", it is unclear if smoking is protected by this amendment. However, public health regulations related to smoking have been challenged by powerful corporations using an expanding definition of the First Amendment.
The selection of the standard of review is key when examining the constitutionality of these regulations. Under Central Hudson, a court considers whether the regulations achieve their intended purpose and explores alternative options available to the government that could achieve success without violating the First Amendment. The strict-scrutiny standard is more exacting, and few regulations survive it.
In the case of Reynolds Tobacco, the court imposed strict scrutiny on graphic images on cigarette packages and advertisements because they were not purely factual and non-controversial but were instead designed to maximize emotional impact. However, in the Commonwealth Brands case, the court found that the graphic images were well-suited to the purposes of the Tobacco Control Act.
To ensure the success of public health regulations, advocates must carefully articulate and document the purpose and mechanism of new regulations, especially when potential First Amendment issues may arise. Regulations that are free from First Amendment concerns, such as those mentioned earlier, are crucial to prioritizing the health and safety of the public.
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Graphic health warnings
Many countries have implemented graphic health warnings on cigarette packaging to educate consumers about the negative health consequences of smoking. These warnings typically consist of both text and images that occupy a significant portion of the packaging.
For example, Argentina passed a law in 2013 requiring all cigarette packages to include graphical warning labels that depict the detrimental effects of long-term smoking, including COVID-19 added in 2022. In Australia, all tobacco products must be plain-packaged and labelled with expanded health warnings, removing all marketing and brand devices. Similarly, Bolivia requires graphic health warnings on the front and back of all cigarette packs, covering 60% of each main face.
India also mandates graphical and textual health warnings on cigarette packets, with at least 85% of the surface of the pack covered by warnings. Of this, 60% must be pictorial, and the remaining 25% contains warnings in English, Hindi, or other Indian languages. Indonesia and Venezuela have also introduced pictorial health warnings that depict local smokers, emphasizing the personal impact of smoking.
The United States has proposed adding graphic images to cigarette packets, marking the first change to health warnings in 35 years. The FDA's final rule, established in 2020, includes eleven new warnings with color images and textual statements depicting the negative health consequences of smoking. These warnings aim to promote greater public understanding of the risks associated with smoking, including lesser-known but serious health issues. The implementation of these warnings has been postponed due to legal challenges.
While the effectiveness of fear-based messaging in reducing smoking behaviours has been debated, research suggests that warning labels contribute to changing consumers' attitudes and behaviours towards tobacco use. However, it is important to consider that warning labels may not be effective for smokers who lack the confidence to quit, highlighting the need for additional behaviour modification methods.
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Tobacco Control Act
The Family Smoking Prevention and Tobacco Control Act, signed into law by President Barack Obama on June 22, 2009, gives the Food and Drug Administration (FDA) the authority to regulate the manufacture, distribution, and marketing of tobacco products. This includes the power to regulate nicotine and ingredient levels, ban flavoured cigarettes (with the exception of menthol and tobacco), and enforce larger health warnings on smokeless tobacco packaging and advertisements.
The Act also requires tobacco companies to register annually, open their manufacturing and processing facilities to FDA inspection every two years, and seek FDA approval for new tobacco products. It establishes the Center for Tobacco Products within the FDA, and funds the FDA's regulation of tobacco products through user fees on manufacturers.
The Tobacco Control Act preserves the authority of state, local, and tribal governments to regulate tobacco products in specific respects. It also allows the Secretary of the Treasury to be notified of any knowledge that reasonably concludes that a tobacco product has left the control of its manufacturer or distributor and may have been imported, exported, distributed, or sold without paying duties or taxes.
The Act was introduced in response to a 2000 Supreme Court decision, which held that the Clinton administration's FDA had "overreached" its authority in attempting to regulate tobacco products. The decision deemed that Congress had not given the FDA authority over tobacco products as customarily marketed. The Tobacco Control Act has been criticised by some as ineffectual, arguing that without the power to eliminate nicotine, the reduction of nicotine levels may lead to increased cigarette smoke inhalation by smokers.
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Frequently asked questions
No, smoking is not protected by the 9th Amendment. The 9th Amendment states that the "enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." This means that just because a right is not specifically listed in the Constitution, it does not mean that the government can deny or disparage those rights.
Yes, there are various laws and regulations in place to restrict smoking, such as the Family Smoking Prevention and Tobacco Control Act, which includes requirements for warning labels on cigarette packages and advertisements.
Yes, tobacco companies have challenged smoking regulations by arguing that they violate their First Amendment rights. For example, in the case of R.J. Reynolds Tobacco Company et al. v. U.S. Food and Drug Administration, the company argued that the graphic images required on cigarette packages violated their First Amendment rights.
The courts use different standards of review to determine whether a regulation violates the First Amendment. Under strict scrutiny, regulations that impose a burden on First Amendment rights are subject to rigorous scrutiny, and few regulations survive this level of review. However, in the case of Reynolds Tobacco, the court imposed strict scrutiny and found that the graphic images designed to maximize emotional impact were not "purely factual and noncontroversial" and therefore violated the First Amendment.
Yes, certain regulations such as bans on smoking in public places, increased taxes on tobacco products, raising the legal age for tobacco use, and smoking-cessation programs are generally considered to be free from First Amendment concerns.
