BOSTON – The New England Journal of Medicine earlier this week lamented a 2012 federal court decision that ruled the FDA’s graphic cigarette pack warnings violated the First Amendment, and argued that the FDA must bolster the science supporting its case before it proposes replacements.

The authors noted that the FDA previously relied on research that said the graphic labels would lower smoking rates by less than 0.1% — which the court had characterized as not “a shred of evidence” that the rule would reduce smoking, a major goal of the rule.

Additionally, they noted the ruling made clear that efforts to limit commercial speech in the United States face steep challenges, as “courts are increasingly willing to accord constitutional rights to corporations and have been particularly unwilling to limit forms of commercial speech.”

Furthermore, the editorial noted the court objected to the graphic nature of the images as playing on emotions rather than informing the public.

“As the FDA crafts new graphic warning labels that might pass constitutional muster, whatever behavioral evidence it can produce will play a crucial role,” the authors wrote. “It is unclear whether the FDA can produce sufficient evidence to convince a skeptical Supreme Court … [and]  creating new graphics and conducting new research will take time in the face of the chill surrounding public health interventions that intrude on commercial speech.” 

“Increasingly, the United States stands alone, because of a constitutional doctrine privileging commercial speech above public health,” the editorial concludes.