The MPAA has a free speech right to assign a G, PG, or PG-13 rating to movies that depict tobacco use, a U.S. District Court has ruled — rejecting an argument that the practice is a form of commercial speech that dangerously encourages kids to smoke.
Judge Richard Seeborg yesterday granted a motion by the movie industry trade group, its members, and the National Association of Theatre Owners, to dismiss a suit against them by Timothy Forsyth. He was troubled when he brought his two kids, aged 12 and 13, to a PG-13 film that included what the decision refers to as “tobacco imagery.”
Forsyth sued, saying that such depictions should require a film to be rated R, unless it “clearly and unambiguously reflects the dangers and consequences of tobacco use or is necessary to represent the smoking of a real historical figure who actually used tobacco.”
He sought a class action certification for a case to mandate the R rating and seek more than $20 million in damages. The MPAA’s Classification and Rating Administration was guilty of negligence, breach of fiduciary duty, and false advertising, among other things, he charged.
The main argument: movie ratings are “pure commercial speech,” making them subject to restrictions that protect the public interest.
Forsyth told the court that a 2012 Surgeon General’s report found that “exposure of children to tobacco imagery in films causes children to smoke.” In addition, the Center for Disease Control found in 2014 that continued use of PG and PG-13 ratings on films with tobacco “would cause 3.2 million children to become addicted to nicotine and one million of those children would die prematurely from tobacco related diseases.”
In April, the CDC said it found that 59% of PG-13 films released between 2002 and 2015 showed smoking and other tobacco use.
But the judge found that the movie ratings are a form of protected speech. CARA says that the ratings reflect “its opinion.” That means “neither intentional nor negligent misrepresentation claims are tenable,” the ruling says.
What’s more, it adds, “the underlying ‘product’ — films — are not mere commercial produces but are expressive works…and plainly entitled to full First Amendment protection.”
Seeborg gave Forsyth an opportunity to amend the legal arguments, but says that the likelihood of success “appears remote.”
The MPAA says it’s “pleased” that the court granted the motion to dismiss. It adds that CARA has said that it “would consider tobacco imagery as a factor in assigning ratings, and their accompanying descriptors, but rejected a wholesale mandatory ‘R’ rating for all motion pictures that contain smoking.”