How filibuster reform could cut smoking rates

The following is a guest post by Nicholas Bagley, University of Michigan Assistant Professor of Law.

A new study about graphic warning labels on cigarette packages is getting a lot of attention. And it should. But when it comes to warning people about the risks of smoking, filibuster reform may matter a whole lot more than new research.

When Congress enacted the Tobacco Control Act in 2009, it instructed FDA to come up with graphic warning labels for cigarettes. Two years later, the agency released its new labels. A group of tobacco companies promptly sued on the ground that forcing them to carry the labels would violate their First Amendment rights.* (Kevin followed the litigation here, here, and here.)

The case went to the D.C. Circuit, which, in a 2-1 vote, invalidated the warning labels. In an opinion by Janice Rogers Brown, the conservative firebrand, the court concluded that the First Amendment required FDA to demonstrate that the labels would reduce the number of Americans who smoke. Yet, as the court saw it, “FDA has not provided a shred of evidence” that the labels would actually work.

Now, it wasn’t quite true that FDA had no evidence at all. Most significantly, the agency pointed to a study comparing Canada, which has had graphic warning labels since 2000, to the United States. But the study wasn’t very large and, in any event, estimated that labels would reduce the smoking rate by a paltry 0.088%. That wasn’t enough for the court, which basically told FDA to try again. (The government opted not to take the case to the Supreme Court.)

Enter the new study, which corrects a bunch of mistakes that FDA apparently made when it carried out the original study. The agency, for example, had controlled for different levels of excise taxes in the United States and Canada. But that’s sort of dumb. When you’re trying to figure out how people respond to warning labels, you want to control for the price of cigarettes at the counter, not the size of an excise tax that the purchaser never sees.

When you control for the right things, the data suggest that graphic warning labels in Canada “decreased adult smoking prevalence by 12–20%, 33–53 times larger than FDA’s estimates.” To put that in perspective: if the graphic warning labels had gone into effect in the United States in 2012, there might have been between 5.3 and 8.6 million fewer adult smokers in 2013. That’s a lot of smokers.

Advocates have cheered the new study, and the New York Times has backed their efforts “to use the study and other scientific evidence to come back with a label proposal that would satisfy the courts.” The enthusiasm is warranted, I think—but not mainly because of the new study. Remember the nuclear option? Filibuster reform? That’s the ballgame.

Here’s why. The Supreme Court hasn’t offered clear guidance about whether requiring companies to carry warnings with visceral emotional content raises constitutional concerns. Without that guidance, judges’ First Amendment decisions tend to be shaped by their beliefs about the proper scope of government power, the value of corporate speech, and the role of individual responsibility. That’s why it’s no surprise that a Republican-majority panel voted to invalidate the graphic warning labels.

It’s also why I think no Democratic judges would strike them down. I have some evidence for that. When the case was first decided, all three of the active D.C. Circuit judges appointed by Democrats voted to have the whole court reconsider it. Their votes suggested that they thought Judge Brown had botched the decision. But it takes the votes of a majority of active judges to rehear a case—and the Democrats were two votes short.

That’s about to change. In May, a fourth Democratic judge was confirmed to the D.C. Circuit. And now, with filibuster reform, the court is poised to get three more. Once they’re confirmed, the court will have seven active judges appointed by Democrats and four by Republicans. For en banc votes, it won’t be anything like an even fight. If a panel of conservative judges moved to invalidate a new batch of graphic warning labels, the Democratic majority would almost certainly take the case en banc and uphold the labels—with or without new studies.

I don’t mean to say that the new study doesn’t matter. It does, if for no other reason than that the labels could still end up before a skeptical Supreme Court. But what matters more—much more, I think—is getting a new set of labels in front of a newly sympathetic D.C. Circuit. For the sake of millions of would-be smokers, I hope FDA moves quickly.

* Full disclosure: I was part of the Justice Department team that defended the Tobacco Control Act in an earlier round of First Amendment litigation.

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