Tobacco Control and the First Amendment

Over at Harvard’s new health law blog – Bill of Health – Richard Epstein outlines the First and Fifth Amendment arguments against the proposed FDA rules requiring graphic warnings on cigarette packages. He accurately states the arguments in favor of the tobacco companies.

Three comments. First, he blames the rule on the FDA:

The FDA has a long history of going over the top on many issues.  This is one time that it should be slapped down, and hard.

But it was Congress that passed the Family Smoking Prevention and Tobacco Control Act, not the FDA.  So, direct the hard slaps to the elected branches of government.

Second, if mandatory warnings are a takings, why have the Surgeon General’s warnings been on the packages for decades? As for commercial speech, why have cigarette ads been banned from TV for decades?

Finally, Epstein’s arguments would gain more purchase for fully legal products (like his billboard example).  But tobacco is a dangerous, regulated product. Let me offer a counter example. The government has the right to ban marijuana outright; but if we partially legalized the product, would it have to be a binary choice between prohibition and laissez faire?  Would an intermediate choice be legal sales restricted to packaging with government-mandated warnings?

Prior TIE coverage here. I predict these cases are heading to the Supreme Court.


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