Health warnings on tobacco products are hard to miss. Unfortunately, the Food and Drug Administration has no idea if the state-mandated labels actually do anything to curb consumption.
Rather than resolve the doubts with science, regulators decided to double their bet in 2016, ordering cigar and pipe tobacco companies to include even larger warnings on their packaging and advertising. In other words, regulators figured that if their prevention strategy was flawed, maybe they could fix it by going bigger.
Three industry associations sued in response, demanding something more than guesswork to justify the policy. On Tuesday, the U.S. Court of Appeals for the District of Columbia intervened, ruling against the FDA.
People don’t have to smoke or chew tobacco to cheer the outcome. Anyone who values the First Amendment can appreciate the potential for abuse when government agents obligate private parties to publish specific messages. Forcing someone to speak can be just as oppressive as or worse than forcing a person to remain silent.
Compelled speech sometimes involves the publication of innocuous facts, such as product ingredients and weight. Nobody really complains about that, but other intrusions go further. Many states, for example, require home bakers to put a residential address on products sold at farmers markets, meaning that any customer can follow the seller home.
Other cases have involved requirements to report a product’s country of origin, the presence of “conflict materials” linked to political violence in Africa, and efforts to combat human trafficking in supply chains.
The nonprofit group Institute for Justice, which fights for First Amendment rights nationwide, has even represented clients forced by the government to lie. Florida regulators, for example, demanded that one dairy farmer call her 100% pure skim milk “imitation” because it lacked additives such as vitamin A. The small-business owner refused to comply and eventually prevailed in the 11th U.S. Circuit Court of Appeals.
More recently, the U.S. Supreme Court overturned a California law that forced crisis pregnancy centers, including those opposed to abortion, to post visible notices about options to terminate pregnancies.
Besides the risk to civil rights, compelled disclaimers have another problem: They simply don’t work. Multiple studies from marketing professor J. Scott Armstrong at the Wharton School of the University of Pennsylvania show that government-mandated messages are not only ineffective, they tend to increase confusion. In other words, they are worse than useless.
Armstrong did not pick sides in the cigar industry lawsuit against the FDA. But he did partner with the Institute for Justice to file an amicus brief in the case, urging the court not to make assumptions about the benefits of tobacco warnings.
“The misguided push for government-mandated disclaimers has been powered by a series of false assumptions that have also found their way into judicial opinions,” Institute for Justice attorneys Justin Pearson and Paul Sherman wrote in the brief. “Those judicial opinions have overstated the disclaimers’ effectiveness.”
As a general rule, the research shows that disclaimers work better when voluntary. This is partly because companies have built-in incentives to communicate risks clearly, especially when products are dangerous in surprising ways or to great extents. If clear liquid is poisonous, for example, a company that fails to disclose the information could suffer reputational harm, lost sales, and financial liability when disaster occurs.
More obvious risks, such as the potential to gain weight from junk food, might require less warning. Too many disclosures or too much detail can cause consumers to tune out. Something similar happens when a person yells too much or types in all caps. A calibration must occur so that the strength and frequency of warnings match the situation. Government regulators bear no particular cost if they overcommunicate or bury important information in the fine print.
They don’t face the same incentives as brand owners to strike the right balance. Eventually, as mandated warnings multiply and get louder, people stop thinking for themselves.
“By requiring disclaimers, governments absolve buyers and sellers of responsibility for care and thus encourage irresponsibility,” Armstrong said.
His research does not look specifically at tobacco warnings, but regulators in any industry have an obligation to study the impact of the disclaimers they impose before setting aside the First Amendment. While tobacco smoke can harm your health, compelled speech can harm your liberty. Both are important.
Daryl James is a writer at the Institute for Justice in Arlington, Virginia.
