Court Opens Door to "R" Rating for Movies With Smoking

WASHINGTON - June 1, 2018 - PRLog -- The Associated Press is reporting that the Motion Picture Association of America [MPAA] is poised to reject a demand, backed up with a major media campaign by more than a dozen major health and medical organizations, to apply, with very limited exceptions, an "R" rating to movies in which smoking is depicted, despite a study showing that more 6,400,000 million children alive today will become smokers because of exposure to smoking in movies.

        But, as Broadcasting & Cable, as well as other media outlets have reported, a federal court ruling upholding a regulation requiring cigar ads to carry a health warning opens the door to legislation which would require movies to disclose - in their advertising, coming attractions, movie posters, etc. - that the movie depicts smoking, suggests public interest law professor John Banzhaf.

        Banzhaf is known as the "The Man Behind the Ban on Cigarette Commercials," "The Law Professor Who Masterminded Litigation Against the Tobacco Industry," and "a Driving Force Behind the Lawsuits That Have Cost Tobacco Companies Billions of Dollars."

        He also helped eliminate cigarette billboards, kill off Joe Camel, and require disclosure of calorie counts in many fast food and other chain restaurants.

        U.S. District Court Judge Amit P. Mehta has just ruled in favor of the Food and Drug Administration [FDA], holding that it - and presumably also state and local legislative bodies - may constitutionally require products to carry clear and conspicuous health warnings.

        Such warnings, he said in response to a law suit brought by cigar interests claiming that such requirements violate the First Amendment, are constitutional provided that they mandate disclosure of only purely factual information, and do not completely crowd out branding and other manufacturer information.

        More specifically and more importantly, the court ruled that health warnings and other mandatory disclosure requirements need meet only a very simple and permissive legal standard, not the more rigorous one imposed when commercial speech is banned or otherwise restricted.

        Thus, a requirement that movie makers simply warn that their product contains scenes of smoking involves only a simply factual disclosure, not a judgement  - by an agency or judge which would raise serious First Amendment concerns  - as to how or why the smoking is shown.

        It is no different from disclosures about content already required for thousands of other products, including nicotine disclosures for cigarettes, saturated fat for foods, etc., argues Banzhaf.

        Such a warning, perhaps in the form of an image of a lit cigarette in a circle, would alert parents that the movie they are considering viewing contains depictions of an activity which can lead them to experiment; and such an experiment, even if brief, can and does lead to addiction to a product which will kill almost half of its users, and cripple many more from heart attacks, strokes, and various cancers.

        Research shows that children are strongly influenced by actors who smoke onscreen regardless if they're portraying "good guys" or "bad guys."

        Moreover, just as requiring disclosure that products contain trans fats encouraged food companies to reduce the amount of trans fats in their products, having to alert parents that a movie they are considering sending their child to depicts and encourages an activity with a high probability of eventually killing them could make directors think twice between introducing such often gratuitous scenes, suggests Banzhaf.

        Indeed, seeing smoking on the silver screen may be much more hazardous to a child's health and well being than seeing a female breast, hearing obscenities, or even witnessing a murder, he argues.

        Perhaps now the American Heart Association, the American College of Obstetricians and Gynecologists, the American Cancer Society, and others should stop relying solely upon trying to beg or pressure the recalcitrant movie industry to extend the "R" rating classification to include smoking, and start using their influence to persuade health-minded state legislators, or even major cities, to adopt legislation to require a warning that a movie contains smoking - a clearer and more precise notification than an "R" rating which applies to many scenes parents may not consider inappropriate for their children, says Banzhaf.

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH),
2000 H Street, NW, Wash, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/  jbanzhaf3ATgmail.com  @profbanzhaf