American exceptionalism – tobacco edition

We previously described Judge Leon’s federal district court ruling that blocked several parts of the Family Smoking Prevention and Tobacco Control Act as unconstitutional. Today the DC Court of Appeals affirmed Judge Leon:  the graphic warnings proposed by the FDA violate the First Amendment.  From the opinion:

In the Proposed Rule, FDA lamented that their previous efforts to combat the tobacco companies’ advertising campaigns have been like bringing a butter knife to a gun fight. According to the FTC, tobacco companies spent approximately $12.49 billion on advertising and promotion in 2006 alone, employing marketing and advertising experts to incorporate current trends and target their messages toward certain demographics. Proposed Rule at 69,531. The graphic warnings represent FDA’s attempt to level the playing field not only by limiting the Companies’ ability to advertise, but also by forcing the Companies to bear the cost of disseminating an anti-smoking message. But as the Supreme Court recently reminded us, “[t]hat the [government] finds expression too persuasive does not permit it to quiet the speech or to burden its messengers.” Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2671 (2011). The First Amendment requires the government not only to state a substantial interest justifying a regulation on commercial speech, but also to show that its regulation directly advances that goal. FDA failed to present any data—much less the substantial evidence required under the APA—showing that enacting their proposed graphic warnings will accomplish the agency’s stated objective of reducing smoking rates. The Rule thus cannot pass muster under Central Hudson.

Last week, the Australian High Court blessed their “plain packaging” rule. Some optimists hoped the US would follow suit. I was officially skeptical. This is one instance that I wish I had been wrong. If this goes to the Supreme Court, it doesn’t bode well for the FDA. (See my NEJM Perspective:  Smoking and the First Amendment).

Alternative titles for this post:

  • The constitutional right to kill smokers
  • Another signature Obama health reform is ruled unconstitutional
  • Wanted:  empirical research on how graphic warnings will reduce smoking rates
  • Even the butter knife is unconstitutional


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