Full opinion text
CLAY, J., announced the judgment of the court and delivered the lead opinion, which constitutes the unanimous opinion of the court on Sections I and IV-VI, and on parts of the analysis for Sections II and VII, but constitutes the dissent on Section III and on parts of the analysis for Sections II and VIL STRANCH, J. (pp. 551-69), delivered a separate opinion joined in full by BARRETT, D. J., which constitutes the majority opinion of the court on Section III and on parts of the analysis for Sections II and VII, as specified on pages 551 and 552 of the opinion. OPINION CLAY, Circuit Judge. Plaintiffs Discount Tobacco City & Lottery, Inc., et al, comprised of manufacturers and sellers of tobacco products, appeal the decision of the district court granting partial summary judgment to Defendants United States of America, et al., and partial summary judgment on Plaintiffs’ claim that certain provisions of the Family Smoking Prevention and Tobacco Control Act, Pub.L. No. 111-31, 123 Stat. 1776 (2009), violate their rights to free speech under the First Amendment. Defendants cross-appeal. For the reasons discussed below, we AFFIRM the decision of the district court upholding the Family Smoking Prevention and Tobacco Control Act’s restrictions on the marketing of modified-risk tobacco products; bans on event sponsorship, branding non-tobacco merchandise, and free sampling; and the requirement that tobacco manufacturers reserve significant packaging space for textual health warnings. We further AFFIRM the district court’s grant of summary judgment to Plaintiffs on the Act’s restriction of tobacco advertising to black and white text. We also AFFIRM the district court’s decision to uphold the constitutionality of the color graphic and non-graphic warning label requirement, with Judge Clay dissenting on this issue. We REVERSE the district court’s determination that the Act’s restriction on statements regarding the relative safety of tobacco products based on FDA regulation is unconstitutional and its determination that the Act’s ban on tobacco continuity programs is permissible under the First Amendment. BACKGROUND I. Brief History of Tobacco Legislation Congress began regulating tobacco products in 1965 and has since passed major legislation regarding tobacco industry practices on at least six occasions. See Federal Cigarette Labeling and Advertising Act of 1965, Pub.L. 89-92, 79 Stat. 282 (introducing tobacco warning labels); Public Health Cigarette Smoking Act of 1969, Pub.L. 91-222, 84 Stat. 87 (banning television and radio advertisement of tobacco products); Alcohol and Drug Abuse Amendments of 1983, Pub.L. 98-24, 97 Stat. 175 (requiring the Department of Health and Human Services to research and report on tobacco); Comprehensive Smoking Education Act of 1984, Pub.L. 98- 474, 98 Stat. 2200 (modifying warning labels); Comprehensive Smokeless Tobacco Health Education Act of 1986, Pub.L. 99- 252, 100 Stat. 30 (extending restrictions to smokeless tobacco); Alcohol, Drug Abuse, and Mental Health Administration Reorganization Act of 1992, Pub.L. 102-321, § 202, 106 Stat. 394 (creating incentives for states to enforce tobacco sales restrictions). In 1996, the United States Food and Drug Administration (“FDA”) attempted to assert its jurisdiction to further regulate the tobacco industry, but the Supreme Court found that the attempted regulation exceeded the FDA’s agency authority. See Food and Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000). As part of the FDA’s 1996 rulemaking process, the FDA made several significant findings regarding tobacco use among juveniles. At that time, the FDA found that, “approximately 3 million American adolescents currently smoke and an additional 1 million adolescent males use smokeless tobacco. Eighty-two percent of adults who ever smoked had their first cigarette before the age of 18, and more than half of them had already become regular smokers by that age.” 61 Fed.Reg. 44396-01, 44398 (Aug. 28, 1996). Relying on United States Surgeon General reports and studies from various medical journals, the FDA concluded that, “[a]n adolescent whose cigarette use continues into adulthood increases his or her risk of dying from cancer, cardiovascular disease, or lung disease. Moreover, the earlier a young person’s smoking habit begins, the more likely he or she will become a heavy smoker and therefore suffer a greater risk of diseases caused by smoking.” Id. at 44399. The FDA found that one-third of young people who become smokers “will die prematurely as a result,” id. (internal citations omitted), becoming part of the approximately “440,000 people [who] die of diseases caused by smoking or other form of tobacco use[, constituting] ... about 20 percent of all deaths in our nation.” Family Smoking Prevention and Tobacco Control Act: Hearing on H.R. 1256 Before the Subcomm. on Commerce, Trade, and Consumer Protection, Comm. on Energy and Commerce, 111th Cong. 1 (2004) (statement of Vice Admiral Richard H. Carmona, United States Surgeon General). More recently, the President’s Cancer Panel reported that, “[e]very day, approximately 4,000 children under age 18 experiment with cigarettes for the first time; another 1,500 become regular smokers. Of those who become regular smokers, about half eventually will die from a disease caused by tobacco use.” The President’s Cancer Panel, Promoting Healthy Lifestyles: Policy, Program, and Personal Recommendations for Reducing Cancer Risk, 64 (2007). This brief overview barely begins to scratch the surface of the problem of juvenile tobacco use and the government’s repeated interventions into the practices of the tobacco industry. The government, in this case, has filed thousands of pages of medical studies and governmental reports supporting the conclusion that the use of tobacco, especially by juveniles, poses an enormous threat to the nation’s health, and imposes grave costs on the government. The government has supplemented this information with copious documentation of the practices used by the industry, oftentimes directly aimed at juveniles and other times seriously effecting them, to maintain and increase tobacco use and dependency. There can be no doubt that the government has a significant interest in preventing juvenile smoking and in warning the general public about the harms associated with the use of tobacco products. (See, e.g., U.S. Dep’t of Health and Human Serv., Preventing Tobacco Use Among Young People; A Report of the Surgeon General, 5 (1994) (concluding that “[n]early all first use of tobacco occurs before high school graduation; this finding suggests that if adolescents can be kept tobacco-free, most will never start using tobacco”).) The Supreme Court made clear that for these reasons, “[t]he State’s interest in preventing underage tobacco use is substantial, and even compelling.” Loril lard Tobacco Co. v. Reilly, 533 U.S. 525, 564, 121 S.Ct. 2404, 150 L.Ed.2d 532 (2001). Nonetheless, as the Supreme Court has recognized, “the sale and use of tobacco products by adults is a legal activity. [The courts] must consider that tobacco retailers and manufacturers have an interest in conveying truthful information about their products to adults, and adults have a corresponding interest in receiving truthful information about tobacco products.” Id. II. The Family Smoking Prevention and Tobacco Control Act On June 22, 2009, the President signed into law the Family Smoking Prevention and Tobacco Control Act (“FSPTCA” or the “Act”), Pub.L. No. 111-31, 123 Stat. 1776 (2009). The stated purpose of the Act is to provide authority to the FDA to regulate tobacco products, in order to “address issues of particular concern to public health officials, including the use of tobacco by young people and dependance on tobacco.” Pub.L. No. 111-31, § 3(2). In addition, the Act seeks “to promote cessation [of tobacco use] to reduce disease risk and the social costs associated with tobacco-related diseases.” Id. § 3(9). As part and parcel of this purpose, the Act regulates not only the sale of tobacco products, but also the advertising and marketing of those products, which are the provisions of the Act at issue in this case. Now challenged are the Act’s requirements (1) that tobacco manufacturers reserve a significant portion of tobacco packaging for the display of health warnings, including graphic images intended to illustrate the hazards of smoking; (2) restrictions on the commercial marketing of so-called “modified risk tobacco products;” (3) ban of statements that implicitly or explicitly convey the impression that tobacco products are approved by, or safer by virtue of being regulated by, the FDA; (4) restriction on the advertising of tobacco products to black text on a white background in most media; and (5) bar on the distribution of free samples of tobacco products in most locations, brand-name tobacco sponsorship of any athletic or social event, branded merchandising of any non-tobacco product, and distribution of free items in consideration of a tobacco purchase (i.e., “continuity programs”). In promulgating the Act, Congress made several legislative findings that are of particular relevance to this case (the “Legislative Findings”). Congress found that (1) “[t]he use of tobacco products by the Nation’s children is a pediatric disease of considerable proportions that results in new generations of tobacco-dependent children and adults,” Pub.L. No. 111-31, § 2(1); (2) “[v]irtually all new users of tobacco products are under the minimum legal age to purchase such products,” id. § 2(4); (3) “past efforts to restrict advertising and marketing of tobacco products have failed adequately to curb tobacco use by adolescents,” id. § 2(6); (4) “[advertising, marketing, and promotion of tobacco products have been especially directed to attract young persons to use tobacco products, and these efforts have resulted in increased use of such products by youth,” id. § 2(15); (5) “[c]hildren are exposed to substantial and unavoidable tobacco advertising that leads to favorable beliefs about tobacco use, plays a role in leading young people to overestimate the prevalence of tobacco use, and increases the number of young people who begin to use tobacco,” id. § 2(20); and (6) “[c]hildren are more influenced by tobacco marketing than adults: more than 80 percent of youth smoke three heavily marketed brands, while only 54 percent of adults, 26 and older, smoke these same brands.” Id. § 2(23). On August 31, 2009, Plaintiffs, a group of manufacturers and sellers of tobacco products, brought suit against the United States of America in the district court, claiming that the challenged provisions of the Act violate their free speech rights under the First Amendment, constitute an unlawful taking under the Fifth Amendment, and are an infringement on their Fifth Amendment due process rights. Plaintiffs also alleged that the Act’s authorization of further restrictions by federal agencies, states and Indian tribes was an unconstitutional delegation of legislative authority. Plaintiffs sought a preliminary injunction and a judgment declaring the challenged provisions unconstitutional. Both parties filed motions for summary judgment. After an evidentiary hearing and the submission of declarations and supporting materials by both parties, the district court, on November 5, 2009, granted summary judgment to Plaintiffs on their claims that the ban on color and graphics in advertising and the ban on statements implying that tobacco products are safer due to FDA regulation violated their First Amendment speech rights. The district court granted summary judgment to the government on all other claims. DISCUSSION I. Standard of Review We review de novo a district court’s decision to grant or deny summary judgment. Rodgers v. Monumental Life Ins. Co., 289 F.3d 442, 448 (6th Cir.2002). Summary judgement may only be granted where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In determining whether summary judgement is appropriate, all inferences are to be made in favor of the non-moving party, and all evidence construed in the light most favorable to that party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). “In reviewing the constitutionality of a statute, courts must accord substantial deference to the predictive judgments of Congress.” Turner Broad. Sys., Inc. v. Fed. Commc’ns Comm’n, 520 U.S. 180, 195, 117 S.Ct. 1174, 137 L.Ed.2d 369 (1997). The Court must also give deference to Congress’ evaluation of the evidence informing its legislative decisions. “The question is not whether Congress, as an objective matter, was correct [in its] determin[ations].... Rather, the question is whether the legislative conclusion was reasonable and supported by substantial evidence in the record before Congress.” Id. at 211, 117 S.Ct. 1174. “Even in the realm of First Amendment questions where Congress must base its conclusions upon substantial evidence, deference must be accorded to its findings as to the harm to be avoided and to the remedial measures adopted for that end, lest [a court] infringe on traditional legislative authority to make predictive judgments when enacting nationwide regulatory policy.” Id. at 196, 117 S.Ct. 1174. In this case, Plaintiffs label their claims as both facial and as-applied challenges to the Act, but because the “plaintiffs’ claim and the relief that would follow ... reach beyond the particular circumstances of these plaintiffs,” the claims that are raised are properly reviewed as facial challenges to the Act. John Doe No. 1 v. Reed, — U.S. -, 130 S.Ct. 2811, 2817, 177 L.Ed.2d 493 (2010). “To succeed in a typical facial attack, [a plaintiff] would have to establish that no set of circumstances exists under which [the statute] would be valid, or that the statute lacks any plainly legitimate sweep.” United States v. Stevens, — U.S. -, 130 S.Ct. 1577, 1587, 176 L.Ed.2d 435 (2010) (internal citations and quotation marks omitted). In reviewing a facial challenge to legislation, we must bear in mind that, facial challenges are disfavored for several reasons. Claims of facial invalidity often rest on speculation. As a consequence, they raise the risk of “premature interpretatio[n] of statutes on the basis of factually barebones records.” Sabri v. United States, 541 U.S. 600, 609, 124 S.Ct. 1941, 158 L.Ed.2d 891 (2004) (internal quotation marks omitted). We must also be mindful that, “ ‘[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people.’ ” Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320, 329, 126 S.Ct. 961, 163 L.Ed.2d 812 (2006) (quoting Regan v. Time, Inc., 468 U.S. 641, 652, 104 S.Ct. 3262, 82 L.Ed.2d 487 (1984)). II. Restrictions on Commercial Speech In order to determine whether the challenged provisions of the FSPTCA pass constitutional muster, we must first consider the level of scrutiny applicable to the Act. Plaintiffs argue that we should review the Act under strict scrutiny, though they concede that precedent dictates that we review most provisions of the Act as restrictions on commercial speech, which are analyzed under a different and less rigorous standard. (First Br. at 19 n. 4.) We see no reason to now upend the longstanding approach that the courts have taken respecting restrictions on commercial speech in favor of Plaintiffs’ suggestion. We review the Act’s restrictions on commercial speech, subject to the framework initially set forth in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N.Y., 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), and Zauderer v. Office of Disciplinary Counsel of the Sup. Ct. of Ohio, 471 U.S. 626, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985). We now turn to that framework. A. Non-Misleading Commercial Speech It is well-established that, “[e]ven though government is under no obligation to provide a person, or the public, a particular benefit, it does not follow that conferral of the benefit may be conditioned on the surrender of a constitutional right.” 44 Liquormart, Inc. v. R.I., 517 U.S. 484, 513, 116 S.Ct. 1495, 134 L.Ed.2d 711 (1996). Therefore, in determining whether a restriction to the tobacco industry’s commercial speech is permissible under the First Amendment, we first look to the test outlined in Central Hudson. Under that test, we first, determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest. 447 U.S. at 566,100 S.Ct. 2343. The last two steps of the Central Hudson test are complementary. They involve “asking whether the speech restriction is not more extensive than necessary to serve the interests that support it.” Lorillard Tobacco Co., 533 U.S. at 556, 121 S.Ct. 2404 (internal quotation marks omitted); see also Posadas de Puerto Rico Assoc. v. Tourism Co. of P.R., 478 U.S. 328, 341, 106 S.Ct. 2968, 92 L.Ed.2d 266 (1986) (describing “[t]he last two steps of the Central Hudson analysis [as] basically involving] a consideration of the ‘fit’ between the legislature’s ends and the means chosen to accomplish those ends”). In analyzing “the Central Hudson factor concerning whether the regulation of commercial speech directly advances the governmental interest asserted,” the Supreme Court has stated, that the Government carries the burden of showing that the challenged regulation advances the Government’s interest in a direct and material way. That burden is not satisfied by mere speculation or conjecture; rather, a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree. Rubin v. Coors Brewing Co., 514 U.S. 476, 486-87, 115 S.Ct. 1585, 131 L.Ed.2d 532 (1995) (internal citations and quotation marks omitted). Though we must arrive at our own conclusions regarding the “fit” of the Act, “[o]ur commercial speech cases recognize some room for the exercise of legislative judgment.” 44 Liquormart, Inc., 517 U.S. at 508, 116 S.Ct. 1495. The Supreme Court has clarified that, “the least restrictive means is not the standard; instead, the case law requires a reasonable fit between the legislature’s ends and the means chosen to accomplish those ends, a means narrowly tailored to achieve the desired objective.” Lorillard Tobacco Co., 533 U.S. at 556, 121 S.Ct. 2404 (alteration in original) (internal citation and quotation marks omitted). Even though this Court must only find a reasonable fit between means and ends to uphold each challenged provision of the Act, “if there are numerous and obvious less-burdensome alternatives to the restriction on commercial speech, that is certainly a relevant consideration in determining whether the ‘fit’ between ends and means is reasonable.” City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 417 n. 13, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993); see also Rubin, 514 U.S. at 491, 115 S.Ct. 1585 (finding that “the availability of alternatives that would prove less intrusive to the First Amendment’s protections for commercial speech” further highlighted the statute’s defects.) B. Potentially Misleading Commercial Speech Because the Central Hudson test does not govern commercial speech that is false, deceptive or misleading, if commercial speech is so categorized, we apply a different test to determine whether a restriction, or disclosure requirement, is unconstitutional. See Sorrell v. IMS Health Inc., — U.S. -, 131 S.Ct. 2653, 2674, 180 L.Ed.2d 544 (2011) (Breyer, J., dissenting) (citing cases where “the [Supreme] Court has found that ‘sales practices’ that are ‘misleading, deceptive, or aggressive’ lack the protection of even this ‘intermediate’ [Central Hudson ] standard”). We have recently clarified our approach to misleading or deceptive commercial speech. In our decision in International Dairy Foods, we held that, “Zauderer applies where a disclosure requirement targets speech that is inherently misleading ... [it also] also controls our analysis where ... the speech at issue is potentially misleading.” Int'l Dairy Foods Ass’n v. Boggs, 622 F.3d 628, 641 (6th Cir.2010). This approach is consistent with well-settled precedent. The Supreme Court has stated that: Untruthful speech, commercial or otherwise, has never been protected for its own sake. Obviously, much commercial speech is not provably false, or even wholly false, but only deceptive or misleading. We foresee no obstacle to a State’s dealing effectively with this problem. The First Amendment, as we construe it today does not prohibit the State from insuring that the stream of commercial information flow cleanly as well as freely. Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 771-72, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976) (internal citations omitted) (emphasis added). As set forth in Zauderer, in the case of misleading or potentially misleading commercial speech, “an advertiser’s rights are adequately protected as long as disclosure requirements are reasonably related to the State’s interest in preventing deception of consumers,” and not “unjustified or unduly burdensome.” Zauderer, 471 U.S. at 651, 105 S.Ct. 2265. Though the government has more leeway to regulate potentially misleading commercial speech than it does in the context of truthful and nonmisleading commercial speech, it “may not place an absolute prohibition on certain types of potentially misleading information ... if the information also may be presented in a way that is not deceptive.” In re R.M.J., 455 U.S. 191, 203, 102 S.Ct. 929, 71 L.Ed.2d 64 (1982). III. The Mandated Warnings on Tobacco-Product Packaging and Advertising We begin our analysis by considering whether the new mandated warnings on tobacco-products packaging and advertising violate the First Amendment. A. The Provision In addition to continuing and expanding upon the requirement that tobacco packaging carry one of the approved “Surgeon General’s Warning” labels, the FSPTCA requires that tobacco manufacturers reserve a significant portion of their packaging — the top 50% of the front and back of cigarette packaging, 30% of the front and back of smokeless tobacco packaging, and 20% of tobacco advertising — for full color, graphic health warnings issued by the FDA. 15 U.S.C. §§ 1333, 4402(2)(A). The Act mandates that the FDA shall, within 24 months of the enactment of the FSPTCA, “issue regulations that require color graphics depicting the negative health consequences of smoking to accompany the label statements.” Pub.L. No. 111-31, § 201(d). Plaintiffs contend that “the scale and intrusiveness of the new warnings far outweighs any legitimate interest in conveying factual information to prevent consumer confusion, particularly since consumers already overestimate these health risks.” (First Br. at 19 (emphasis in original).) Because consumers already understand the health risks of smoking, Plaintiffs argue, the additional scope of the warning labels is unjustified. (Id. at 21.) Plaintiffs further state that the new warning requirements are unduly burdensome because they effectively overshadow and dominate Plaintiffs’ speech. (Id. at 24-25.) Lastly, Plaintiffs argue that the required graphic images extend beyond mere factual warnings, and instead “force Plaintiffs to market to consumers Congress’ belief that tobacco use is socially unacceptable,” (id. at 26), through way of “subjective and highly controversial message[s].” (Id. at 27.) In sum, Plaintiffs argue that, “since the scale and intrusiveness of the new warnings are not remotely necessary to convey factual information that is effectively conveyed by the existing warnings and already universally known, they are unconstitutional.” (Third Br. at 45.) Citing, among other sources, a 2007 Institute of Medicine of the National Academies report, the government counters that an information deficit still exists, especially among juveniles, regarding the dangers of tobacco use. According to the report, “research suggests that adolescents misperceive the magnitude of smoking harms and the addictive properties of tobacco and fail to appreciate the long-term dangers of smoking, especially when they apply the dangers to their own behavior.... These distorted risk perceptions are associated with adolescents’ decisions to initiate tobacco use, a decision that they will later regret.” Institute of Medicine Report, Ending the Tobacco Problem: A Blueprint for the Nation, 93 (2007) (hereafter, 2007 IOM Report). Although the government concedes the Plaintiffs’ repeatedly cited contention that adolescents significantly overestimate the risk of developing lung cancer as a result of smoking, the government provides evidence that adolescents underestimate the degree to which smoking can shorten life and the likelihood that they will suffer tobacco-related disease, and that both adolescent and adult smokers were more than twice as likely as nonsmokers to doubt that tobacco use, even for a period of 30 to 40 years, would cause death. (Id. at 89-90); see also United States v. Philip Morris USA Inc., 449 F.Supp.2d 1, 578 (D.D.C.2006) (finding that “[m]ost people do not have a complete understanding of the many serious diseases caused by smoking, the true nature of addiction, or what it would be like to experience either those diseases or addiction itself. Rather, most people have only a superficial awareness that smoking is dangerous.”). The government argues that the purpose of the new warning label requirement “ ‘is not to stigmatize the use of tobacco products on the industry’s dime; it is to ensure that the health risk message is actually seen by consumers in the first instance.’” (Second Br. at 22) (quoting Commonwealth Brands, Inc. v. United States, 678 F.Supp.2d 512, 530 (W.D.Ky. 2010)). Furthermore, conveying the health risks of tobacco use in the manner mandated by the Act is not unduly burdensome on Plaintiffs’ speech, the government argues, as “ ‘half of cigarette packs, 70% of smokeless tobacco packages, and 80% of advertisements remain available for [Plaintiffs’] speech.’ ” (Id. at 28 (quoting Commonwealth Brands, Inc., 678 F.Supp.2d at 531)). B. Analysis 1. Level of Scrutiny Plaintiffs argue that “the Government must survive strict scrutiny [because it is] attempting] to convert commercial speakers into its mouthpiece for a ‘subjective and highly controversial’ marketing campaign expressing its disapproval of their lawful products.” (First Br. at 19) (quoting Entm’t Software Ass’n v. Blagojevich, 469 F.3d 641, 652 (7th Cir.2006).) As a threshold matter, there is no indication that the textual element of the new warning labels, when viewed in isolation, express either completely “subjective” or “highly controversial” messages. The Act requires that cigarette packaging bear one of nine textual health warnings, and smokeless tobacco products one of four warnings, which each convey factual information regarding the health consequences of smoking or smokeless tobacco use. These exact, or similar, warnings have been required on cigarette packaging since 1965. Plaintiffs submit no evidence that the content of any of the health warnings are in dispute within the scientific or medical community. Similarly, the Act requires that the images issued by the FDA visually “depict[ ] the negative health consequences of smoking” in accompaniment with the label’s textual warnings. Pub.L. No. 111-31, § 201(d). But, in contrast to the textual warnings, there can be no doubt that the FDA’s choice of visual images is subjective, and that graphic, full-color images, because of the inherently persuasive character of the visual medium, cannot be presumed neutral. Because visual images are subjective and cannot be categorized as mere health disclosure warnings, Plaintiffs’ argument for strict scrutiny is not wholly unpersuasive. Relying on a case from the Seventh Circuit, Entm’t Software Ass’n v. Blagojevich, Plaintiffs argue that the new warning labels must be analyzed as a content-based restriction on speech, subject to strict scrutiny. See 469 F.3d at 645-46 (employing strict scrutiny to review of an Illinois law restricting sales of certain video games to minors and requiring a label deeming a game “sexually explicit”). This approach finds a measure of additional support in the Supreme Court’s recent decision in Brown v. Entm’t Merchants Ass’n, — U.S. -, 131 S.Ct. 2729, 2738, 180 L.Ed.2d 708 (2011). In Entertainment Merchants, the Supreme Court reviewed a California law that prohibited the sale of “violent” video games to minors and required labels bearing the number “18” to be placed on certain video games sold to minors. The Court applied strict scrutiny to the law, having determined that the requirements imposed by the state constituted a “restriction on the content of protected speech.” Id. But both Entertainment Merchants and Blagojevich are distinguishable from the case now before us, because both involved not just warning requirements, but also affirmative limitations on speech (in the form of sales restrictions). Furthermore, these cases involved a state attempting to restrict core speech in the form of “art and literature” based on the state’s determination that certain words were “too harmful to be tolerated” and so were not protected under the First Amendment. Id. at 2734. Here, the warning labels required by the Act do not impose any restriction on Plaintiffs’ dissemination of speech, nor do they touch upon Plaintiffs’ core speech. Instead, the labels serve as disclaimers to the public regarding the incontestable health consequences of using tobacco. Nearly fifty years ago, the Supreme Court upheld the proposition that, “[t]o avoid giving a false impression that smoking [is] innocuous, the cigarette manufacturer who represents the alleged pleasures or satisfactions of cigarette smoking in his advertising must also disclose the serious risks to life that smoking involves.” Cipollone v. Liggett Group, Inc., 505 U.S. 504, 527, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (quoting 29 Fed.Reg. 8356 (1964)). Like other disclosures governed by the Zauderer standard, these tobacco disclosures may “appear in such a form, or include such additional information, warnings, and disclaimers, as are necessary to prevent its being deceptive.” Va. State Bd. of Pharmacy, 425 U.S. at 772 n. 24, 96 S.Ct. 1817. Plaintiffs argument for strict scrutiny is therefore unsupported. 2. Dissenting Opinion on the Requirement of Color Graphic Images Although I join in this opinion, the issues presented by § 201(d) of the Act concerning the use of color graphic warning labels should have resulted in a reversal of this aspect of the district court’s opinion, and for that reason I disagree with my two colleagues on this issue. In doing so, I believe that the district court, although acknowledging the absence of the regulation, addressed the color graphics requirement both facially and as-applied. The issue was also adequately briefed and argued by both parties, and since the record is sufficient it is judicially efficient for this Court to consider the issue at this time. There is general agreement in this Court that even though disclosure requirements, such as the warning labels mandated by the Act, may be constitutionally permissible, all forms of required warnings will not survive First Amendment scrutiny. “We recognize that unjustified or unduly burdensome disclosure requirements might offend the First Amendment by chilling protected commercial speech. But we hold that an advertiser’s rights are adequately protected as long as disclosure requirements are reasonably related to the State’s interest in preventing deception of consumers.” Zauderer, 471 U.S. at 651, 105 S.Ct. 2265. There is also agreement that Plaintiffs’ argument that consumers are already adequately aware of the health risks associated with tobacco is not widely accepted. As summarized above, the government has presented abundant evidence to support Congress’ findings that juveniles are not sufficiently aware of the actual risks of tobacco use. Furthermore, the record reveals that current tobacco warning labels fail to convey health information effectively. The primary deficiency in the form of the current warnings is that they are easily overlooked. See Family Smoking Prevention and Tobacco Control Act: Hearing on H.R. 1108, Before the H. Subcomm. on Health of the Comm. on Energy and Commerce, 110th Cong. 42 (2007) (finding that “more than 40 percent of subjects did not even view the warning,” and “an additional 20 percent looked at the warning but failed to actually read it”); (see also Lila J. Finney Rutten et al., Smoking knowledge and behavior in the United States: Sociodemographic, smoking status, and geographic patterns, 10 Nicotine & Tobacco Research 10, 1570 (Oct.2008) (concluding that “much work remains to be done to accurately and evenly inform American adults of the health consequences of tobacco use”).) Where I part with the majority is on what I consider to be a constitutional flaw in the requirement for color graphic warning labels. Though the government attempts to analogize the graphic pictorial warnings of the type mandated by the Act to the extensive warnings imposed on over-the-counter drugs, such an analogy is not convincing. First, while the government mandates extensive textual warnings on drugs, it does not require color graphics. Secondly, drug warnings present purely factual information, with no subjective component. The requirement imposed by the FSPTCA — that a product manufacturer place a large scale color graphic on a product warning label — is simply unprecedented. Although the government has demonstrated that an information deficit still exists among potential tobacco consumers, which may render warning-less tobacco products inherently deceptive, it has not adequately shown that the inclusion of col- or graphic warning labels is a properly or reasonably tailored response to address that harm. It appears, from the government’s own evidence, that the color graphic warning labels are intended to create a visceral reaction in the consumer, in order to make a consumer less emotionally likely to use or purchase a tobacco product. As summarized by one of the few available studies addressing the issue of graphic tobacco warning labels on the U.S. audience: One of the ways that more graphic warning labels can help consumers appreciate the risks of smoking is to create unfavorable emotional associations with the behavior. Bland descriptions of the health hazards of smoking, such as currently displayed on cigarette packs in the United States, are unlikely to create such associations, because they fail to attract attention or to make the health danger sufficiently compelling. Ellen Peters et al., The impact and acceptability of Canadian-style cigarette warn ing labels among U.S. smokers and nonsmokers, 9 Nicotine & Tobacco Research 4, 474 (2007) (internal citations omitted). While it is permissible for the government to require a product manufacturer to provide truthful information, even if perhaps frightening, to the public in an effort to warn it of potential harms, it is less clearly permissible for the government to simply frighten consumers or to otherwise attempt to flagrantly manipulate the emotions of consumers as it seeks to do here. As the government acknowledges in its argument in support of upholding the Act’s ban on color and graphics in tobacco industry advertisements, colorful graphic images can evoke a visceral response that subsumes rationale decision-making. This principle applies equally when seeking to discourage behavior. The government failed to provide sufficient evidence to persuade me that the color graphics requirement is a reasonably tailored solution. See Thompson v. Western States Med. Ctr., 535 U.S. 357, 373, 122 S.Ct. 1497, 152 L.Ed.2d 563 (2002) (finding that “[i]t is well established that ‘the party seeking to uphold a restriction on commercial speech carries the burden of justifying it’”) (quoting Edenfield v. Fane, 507 U.S. 761, 770, 113 S.Ct. 1792, 123 L.Ed.2d 543 (1993)). In Thompson, licensed pharmacists challenged the provisions of the Food and Drug Administration Modernization Act (“FDAMA”), which prohibited advertising and promotion of particular compounded drugs. The provisions of the FDAMA required pharmacists who advertised compounded drugs to undergo FDA approval. Respondents specialized in drug compounding and frequently distributed information and promotional materials to “inform patients and physicians of the use and effectiveness of specific compounded drugs.” Id. at 365, 122 S.Ct. 1497. Respondents argued that the FDAMA provisions violated the First Amendment and were unconstitutional restrictions on commercial speech. The government identified three substantial interests in the FDAMA: (1) “preserving] the effectiveness and integrity of the FDCA’s new drug approval process and the protection of the public health that it provides;” (2) “preserving] the availability of compounded drugs for those individual patients who, for particularized medical reasons, cannot use commercially available products that have been approved by the FDA”; and (3) “[a]chieving the proper balance between those two independently compelling but competing interests is itself a substantial governmental interest.” Id. at 368, 122 S.Ct. 1497. The Supreme Court held that the FDAMA provisions prohibiting advertising and promotion of compounded drugs unconstitutional because the government “has not offered any reason why these possibilities, alone or in combination, would be insufficient to prevent compounding from occurring on such a scale as to undermine the new drug approval process.” Id. at 373, 122 S.Ct. 1497. This Court has also accepted the proposition that the state must fully consider other options when weighing the suppression of speech to address a public policy concern. See BellSouth Telecommunications, Inc. v. Farris, 542 F.3d 499, 508-509 (6th Cir.2008) (finding that provisions in the Kentucky’s Tax Injunction Act, which prohibited telecommunications providers from identifying a new tax on consumers’ bills, violated the First Amendment because the government failed to consider other alternatives before suppressing speech to address a policy problem). In all instances, any government solution must take into account both the intended and the unintended restriction on the rights afforded by the First Amendment. While the majority argues that the color graphics requirement materially advances the government’s stated interest in counteracting the informational deficit regarding health hazards, such a finding is far from conclusive, as color graphics cannot accurately convey all of the health risks associated with tobacco use. Although elements of the color graphics requirement may remain constant, the underlying message that they convey will vary with the interpretation and context of its viewer. The color graphics can be seen one way by some smokers, yet another by other smokers — one way by some non-smokers and yet an entirely different interpretation by other non-smokers. While the images depicted by the color graphics may rest on different individual viewpoints and ideologies, the requirements of the Constitution firmly tips the balance towards disqualifying a government regulatory requirement that abridges the right of citizens to engage in free speech. For that reason, the majority’s reliance on the color graphics warning requirement as a constitutionally protected solution in light of the circumstances is simply overstated. Though the hurdle that Zauderer erects for the government is a relatively low one, it is still a hurdle that the government must surmount in order to uphold the form of the warning label requirement that it seeks to impose on the tobacco industry. While courts have been resistant to strike down disclosure requirements under Zauderer, if Zauderer does in fact create a line, then it is clear that some types of disclosure requirements must cross that line. The requirement embodied in § 201(4)(d) of the Act crosses the line. Accordingly, I would find the portion of the provision requiring color graphic images to accompany the textual warnings on tobacco product packaging unconstitutional, and I would REVERSE the decision of the district court on that issue. 3. Non-Graphic Aspects of Warning Labels With regard to the increased size and placement requirement of the textural warnings on tobacco packaging, the government has demonstrated that the Act’s requirements are reasonably tailored to overcoming the informational deficit regarding tobacco harms. See Zauderer, 471 U.S. at 651, 105 S.Ct. 2265. The government has illustrated, as Congress found, that larger warnings materially affect consumers’ awareness of the health consequences of smoking and decisions regarding tobacco use. Plaintiffs’ argument that the provision is unduly burdensome because the scale of the warning label drowns out their speech is unpersuasive. The government has provided ample evidence supporting the size requirement for the new labels, (see, e.g., World Health Organization, WHO Framework Convention on Tobacco Control, art. 11.1(b) (2003)), and Plaintiffs have not shown that the remaining portions of their packaging are insufficient for them to place their brand names, logos or other information. Instead, Plaintiffs primary argument is that the use of such significant labels might dissuade certain smokers from buying their product by making it appear unhealthy or otherwise unattractive. But this is, in some ways, the purpose of the labels — to provide truthful information regarding the health consequences of the product in order to decrease “the use of tobacco by young people and dependance on tobacco.” Pub.L. No. 111-31, § 3(2). C. Summary For these reasons, we AFFIRM the district court’s determination and hold that the Act’s requirement that tobacco packaging and advertising that includes color graphic and non-graphic warning labels satisfies the requirements of the First Amendment. However, Judge Clay dissents on the issue of the color graphic warning label requirement. IV. Restrictions of Speech Concerning Modified Risk Tobacco Products We now consider whether the Act’s requirement that harm reduction claims relating to modified risk tobacco products pass pre-market review is an unconstitutional restriction of free speech. A. The Provision Under the so-called modified risk tobacco product rule (“MRTPR”), Plaintiffs may only commercially market a product as a “modified risk” if, after application to the FDA, it is determined that the product, “as it is actually used by consumers, will— (A) significantly reduce harm and the risk of tobacco-related disease to individual tobacco users; and (B) benefit the health of the population as a whole taking into account both users of tobacco products and persons who do not currently use tobacco products.” Pub.L. No. 111-31, § 911(g)(1) (codified at 21 U.S.C. § 387k(g)(1)). Under the Act, “[t]he term ‘modified risk tobacco product’ means any tobacco product that is sold or distributed for use to reduce harm or the risk of tobacco-related disease associated with commercially marketed tobacco products.” Id. § 911(b)(1). A tobacco product will be considered to be “sold or distributed” for the these purposes if: (i) the label, labeling, or advertising of which represents explicitly or implicitly that— (I) the tobacco product presents a lower risk of tobacco-related disease or is less harmful than one or more other commercially marketed tobacco products; (II) the tobacco product or its smoke contains a reduced level of a substance or presents a reduced exposure to a substance; or (III) the tobacco product or its smoke does not contain or is free of a substance; (ii) the label, labeling, or advertising of which uses the descriptors “light”, “mild”, or “low” or similar descriptors; or (iii) the tobacco product manufacturer of which has taken any action directed to consumers through the media or otherwise ... respecting the product that would be reasonably expected to result in consumers believing that the tobacco product or its smoke may present a lower risk of disease or is less harmful than one or more commercially marketed tobacco products, or presents a reduced exposure to, or does not contain or is free of, a substance or substances. Id. § 911(b)(2)(A). Plaintiffs argue that the provision is overbroad because, as they explain, it applies to “Plaintiffs’ participation in the public-health debate concerning tobacco harm reduction, even when that debate plays out in scientific symposia, regulatory press releases, or news programming such as 60 Minutes, and even when Plaintiffs limit their speech to discussions of generic product categories like smoke-free tobacco products.” (First Br. at 29-30.) Therefore, Plaintiffs contend, the MRTPR effectively “shut[s them] out of the public-policy debate over the role of reduced-risk products in a tobacco harm-reduction strategy,” (id. at 28), and constitutes an impermissible “viewpoint-based restriction on one class of speakers in a political debate,” (id. at 16), and a prior restraint on free speech. (Id. at 28.) The government categorizes the MRTPR as a “pre-market review of purported reduced-risk tobacco products parallelling] preexisting FDCA provisions applicable to drugs.” (Second Br. at 34.) It is the government’s position that “[t]he purpose of pre-market review is to evaluate the manufacturer’s evidence that the product will, in fact, achieve its claimed purpose,” (id. at 36), and as such the MRTPR does not implicate the First Amendment. (Id. at 34.) Alternatively, the government argues that the MRTPR meets the test set forth in Central Hudson for government regulation of commercial speech. B. Analysis 1. Prior Restraint Plaintiffs argue that the MRTPR is a prior restraint on intertwined political and commercial speech, which must be reviewed under strict scrutiny. (First Br. at 28.) The district court agreed with this categorization, and analyzed the MRTPR accordingly. Commonwealth Brands, Inc., 678 F.Supp.2d at 533. Though the MRTPR is a regulatory scheme that prohibits Plaintiffs from making certain statements about tobacco products before receiving approval from the FDA, Plaintiffs offer no authority to support the conclusion that this regulation of commercial speech requires the strict scrutiny and presumption of constitutional invalidity afforded to laws effecting a prior restraint on protected non-commercial speech. Instead, the Supreme Court has, on several occasions “observed that commercial speech is such a sturdy brand of expression that traditional prior restraint doctrine may not apply to it.” Central Hudson, 447 U.S. at 571 n. 13, 100 S.Ct. 2343; see also Zauderer, 471 U.S. at 668 n. 13, 105 S.Ct. 2265; Virginia State Bd. of Pharmacy, 425 U.S. at 771-72 n. 24, 96 S.Ct. 1817. Plaintiffs attempt to circumvent the distinction between commercial and noncommercial speech by arguing that their “supposedly ‘commercial speech’ is ‘inextricably intertwined with otherwise fully protected speech’ and thus still governed by the ‘test for fully protected expression.’ ” (First Br. at 30-31) (quoting Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 796, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988).) Plaintiffs might be correct if this were a circumstance where the Court “cannot parcel out the speech,” Riley, 487 U.S. at 796, 108 S.Ct. 2667, but this is not such a case. In this case, the MRTPR only applies to products where (1) the labeling or advertising of the specific product makes particular health claims, (2) the labeling or advertising of the product uses key words, or (3) the “tobacco product manufacturer of which has taken any action directed to consumers through the media or otherwise ... respecting the product.” 21 U.S.C. § 387k(b)(2)(A) (emphasis added). Because the restriction applies to consumer-directed claims regarding a manufacturer’s specific products, there is no reason to believe that it touches upon Plaintiffs’ non-commercial speech “in the public-health debate concerning tobacco harm reduction ... in scientific symposia, regulatory press releases, or news programming such as 60 Minutes,” or that the MRTPR applies “when Plaintiffs limit their speech to discussions of generic product categories like smoke-free tobacco products.” (First Br. at 29-30.) Neither the government, nor the text of the statute itself, suggests otherwise. The Supreme Court has stated that utterances may: constitute commercial speech notwithstanding the fact that they contain discussions of important public issues____ We have made clear that advertising which links a product to a current public debate is not thereby entitled to the constitutional protection afforded noncommercial speech. A company has the full panoply of protections available to its direct comments on public issues, so there is no reason for providing similar constitutional protection when such statements are made in the context of commercial transactions. Advertisers should not be permitted to immunize false or misleading product information from government regulation simply by including references to public issues. Bolger v. Youngs Drug Prod. Corp., 463 U.S. 60, 67-68, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983) (internal citations and quotation marks omitted). In this case, because Plaintiffs’ ability to make “direct comments on public issues” remains untouched, “[t]here is no basis in the record to believe that the Act will be interpreted or applied to infringe significantly on noncommercial speech rights.” San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 537 n. 15, 107 S.Ct. 2971, 97 L.Ed.2d 427 (1987). Thus, this Court is left with Plaintiffs’ “action directed to consumers through the media or otherwise ... respecting the product,” 21 U.S.C. § 387k(b)(2)(A), which we find to be commercial speech properly analyzed under Central Hudson. 2. Constitutionality Plaintiffs argue that “[t]he MRTPR plainly ensnares truthful, non-misleading speech,” because the provision restricts them from making claims of individual harm reduction, “even if Plaintiffs’ speech unambiguously disavows any population-wide health benefit,” (First Br. at 33); the provision restricts them from marketing tobacco products as additive-free to appeal to naturalists and smokers who prefer organic products, even when such preferences are not linked to perceptions of health benefit, (id. at 34); and the provision, though it explicitly exempts the marketing of smokeless tobacco products as “smokeless” or “smoke free,” prevents manufacturers from “explain[ing] the relative health significance” of those designations. (Id. at 34-35.) Finally, Plaintiffs argue that the restrictions embodied in the MRTPR do not materially advance the government’s interests, and are not narrowly tailored to those interests. (Id.) The government responds that “[t]he statutory provision requiring premarket review of purported reduced-risk tobacco products parallels preexisting FDCA provisions applicable to drugs and, like the drug provisions, it presents no First Amendment problem.” (Second Br. at 34.) Alternatively, the government argues that the MRTPR survives analysis under Central Hudson. (Id. at 40.) To the government’s primary argument, Plaintiffs reply that “there is no cognizable First Amendment difference between a law that directly proscribes promotional speech and one that renders a product’s sale illegal based on promotional speech.” (Third Br. at 48.) As such, Plaintiffs state that the provision must withstand First Amendment analysis. We agree with Plaintiffs, and therefore proceed to the government’s alternative argument. See Brown & Williamson Tobacco Corp., 529 U.S. at 142, 120 S.Ct. 1291 (rejecting attempt to make similar analogy to the FDA’s regulation of drugs). Under Central Hudson, we first “determine whether the expression is protected by the First Amendment.” 447 U.S. at 566, 100 S.Ct. 2343. While the government’s position is largely based on its claim that Plaintiffs’ speech regarding modified risk tobacco products is, and has historically been, misleading, the MRTPR must still survive the scrutiny dictated by Central Hudson, as the provision undoubtedly ensnares some speech which may be completely truthful and nonmisleading. The regulation of such truthful commercial speech is not exempted from the First Amendment analysis in Central Hudson, and we therefore proceed to step .two, which requires us to determine whether the interest declared by the government is substantial. Contrary to Plaintiffs’ assertions, the interest that the government seeks to advance through the MRTPR is not the risk that the public will become overly informed regarding the relative risks of various tobacco products, but instead the risk that the tobacco industry will make fraudulent claims regarding the relative health benefits of the products that it markets. (See Second Br. at 32 (“Congress’s decision to require pre-market review was informed by the tobacco industry’s long history of marketing of ‘low tar’ cigarettes with misleading health claims.” (citing Legislative Findings 38 and 39, Pub.L. No. 111-31, §§ 2(38)-(39)))); see also Philip Morris, 449 F.Supp.2d at 430 (finding that, “[f]or several decades, [the major tobacco manufacturers] have marketed and promoted their low tar brands as being less harmful than conventional cigarettes. That claim is false ... [and b]y making these false claims, [the major tobacco manufacturers] have given smokers an acceptable alternative to quitting smoking, as well as an excuse for not quitting”); United States Surgeon General Report, The Health Consequences of Smoking, 25 (2004) (concluding that “[s]moking cigarettes with lower machine-measured yields of tar and nicotine provides no clear benefit to health”). When a prohibition is intended to prevent consumer deception, the burden lies with the government to “demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.” Ibanez v. Fla. Dep’t of Bus. & Prof'l Reg., Bd. of Accountancy, 512 U.S. 136, 146, 114 S.Ct. 2084, 129 L.Ed.2d 118 (1994). “[A] State’s paternalistic assumption that the public will use truthful, nonmisleading commercial information unwisely cannot justify a decision to suppress it,” 44 Liquormart, Inc., 517 U.S. at 497, 116 S.Ct. 1495, and will not support a finding of a substantial state interest. This limitation is enforced even where the pervasiveness of such information might persuade the public to make what the government perceives as a bad choice, because “[t]he First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good.” Id. at 503, 116 S.Ct. 1495. “Evidence in the congressional record demonstrating a pattern of [potentially deceptive] advertisements ... [may be] adequate to establish ... the likelihood of deception.” Milavetz, Gallop & Milavetz, P.A. v. United States, — U.S. -, 130 S.Ct. 1324, 1340, 176 L.Ed.2d 79 (2010). There is ample caselaw, cited by the government, to support the conclusion that tobacco manufacturers have historically “marketed and promoted their low tar brands to smokers — who were concerned about the health hazards of smoking or considering quitting — as less harmful than full flavor cigarettes despite either lacking evidence to substantiate their claims or knowing them to be false.” United States v. Philip Morris USA Inc., 566 F.3d 1095, 1107 (D.C.Cir.2009); see also Altria Group, Inc. v. Good, 555 U.S. 70, 87-91, 129 S.Ct. 538, 172 L.Ed.2d 398 (2008) (providing an overview of the tobacco industry’s misleading use of descriptors such as “low tar” and “light”). The same can be said for the tobacco industry’s marketing of smokeless tobacco products as safe alternatives to smoking. See, e.g., National Survey on Drug Use and Health, Smokeless Tobacco Use, Initiation, and Relationship to Cigarette Smoking: 2002 to 2007, 4 (Mar.2009) (“Combined data from 2002 to 2007 indicate that an annual average of 1.1 million persons initiated use of smokeless tobacco in the past 12 months.... Initiation of smokeless tobacco in the past 12 months was more likely to occur among youths aged 12 to 17 than among young adults aged 18 to 25---- Both of these age groups had higher rates of initiation than adults aged 26 or older.”). This evidence is sufficient to satisfy the government’s burden of demonstrating a pattern of deception. There is no question that the harm caused by the tobacco industry’s use of misleading advertising and marketing tactics regarding the relative risks of certain tobacco products is real and significant. Exemplifying this is the fact that the market share for “low tar” cigarettes increased from 2% of sales in 1967 to 81.9% in 1998. Federal Trade Commission, Cigarette Report for 1999, 20 (2001). Such a drastic shift from conventional products to “modified risk products” occurred in a single generation, though it was later discovered that these products delivered far more tar and nicotine than the tobacco industry claimed. See Legislative Findings 38 and 39, Pub.L. No. 111-31, §§ 2(38)-(39); Altria Group, Inc., 555 U.S. at 87-90, 129 S.Ct. 538. Accordingly, we find that the government has demonstrated a substantial interest and therefore satisfied step two of Central Hudson. The government has also satisfied the final inquiries under Central Hudson, regarding the fit and the tailoring of the measure. As discussed above, the MRTPR only applies to claims “directed to consumers through the media or otherwise ... respecting the product,” or on the labeling or advertising of the product. See Pub.L. No. 111-31, § 911(b)(2)(A). There is no indication that the provision suppresses non-commercial speech relating to nonspecific tobacco products. Plaintiffs’ claims that the MRTPR also encompasses their marketing of tobacco products as “additive-free” to appeal to naturalists and smokers who prefer organic products, even when such preferences are not linked to perceptions of health benefit, (First Br. at 34), does not alter this conclusion. Plaintiffs have presented no evidence to suggest that “consumers who prefer organic products for environmental or other reasons ... [but do not] perceive [them] ... to convey a health benefit,” (id.), actually exist. On the contrary, we may safely presume that naturalists and those who subscribe to organic products do not engage in unmotivated or arbitrary behavior — common sense dictates the conclusion that they prefer such products precisely because they believe that natural and organic products confer health advantages over conventional products. See Centers for Disease Control and Prevention (“CDC”), Low-Yield Cigarettes and Cigarette-Like Products, 1 (2009) (finding that “[m]any smokers consider smoking ... additive-free cigarettes to be safer than smoking regular cigarettes”). Consequently, Plaintiffs’ attempt to de-link hypothetical co