The First Amendment v. public health regulation

Two weeks ago, I warned TIE readers about the public health implications of the Vermont data-mining decision from SCOTUS, Sorrell v. IMS Health. Beyond data-mining, the decision sets higher hurdles for public health restrictions on unhealthy products. From my NEJM Perspective:

Outside the pharmaceutical realm, this decision also bodes ill for marketing regulation of food, tobacco, alcohol, and other products with important public health effects. Kennedy’s opinion notes that “the State may not seek to remove a popular but disfavored product from the marketplace by prohibiting truthful, nonmisleading advertisements that contain impressive endorsements or catchy jingles. That the State finds expression too persuasive does not permit it to quiet the speech or to burden its messengers.” One could surmise from this position that cigarette manufacturers might have a First Amendment right to broadcast TV advertisements or target young prospective smokers with cartoons. By contrast, regulations requiring additional speech — such as menu and food-labeling laws — might better survive First Amendment review.

It didn’t take the tobacco companies long to use Sorrell against the proposed graphic warnings on cigarette packages. They sued the FDA on Tuesday in the DC federal district court.  From the complaint:

This is precisely the type of compelled speech that the First Amendment prohibits.  While the Government may require Plaintiffs to provide purely factual and uncontroversial information to inform consumers about the risks of tobacco products, it may not require Plaintiffs to advocate against the purchase of their own lawful products…

Because the Rule compels Plaintiffs to engage in anti-smoking advocacy on behalf of the Government, it is subject to strict scrutiny, a standard that the Government cannot possibly satisfy.

Some comments:

  1. This suit was prompted by Kennedy’s comments in Sorrell v. IMS Health. The conservatives on the Court were almost asking for a lawsuit like this.
  2. Do the companies agree that the existing warning “smoking causes cancer” is “purely factual and uncontroversial?”
  3. The FDA’s proposed warnings are graphic, but isn’t the clinical evidence against smoking “purely factual and uncontroversial?” Is there any doubt that smoking really does cause these conditions?
  4. Compare the proposed FDA labels to those in Brazil.
  5. Is the WHO Framework Convention on Tobacco Control also unconstitutional because it requires warnings on cigarette packages? (The US signed in May 2004, under Bush, but never ratified).
  6. The tobacco companies’ legal team includes First Amendment superstar Floyd Abrams, who is also giving press interviews on the case.
  7. Lots of coverage of this issue, but little analysis. One excellent blog post on the suit is over at the FDA Law Blog.



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