In R.J. Reynolds Tobacco Co. v. U.S. Food and Drug Administration, the District Court for the District of Columbia has blocked for the time being the FDA’s strenuous campaign to issue stringent health warnings on cigarette packaging and advertisements. I address this case in my weekly Defining Ideas column, arguing that the FDA's deliberately misleading anti-smoking campaign is a violation of free speech.
The 2009 Family Smoking Prevention and Tobacco Control Act gives the FDA the power to “issue regulations that require color graphics depicting the negative health consequences of smoking.” Pursuant to that authority, the FDA had published regulations that required all tobacco companies to place a set of pictorial and written textual warnings on the packages of all cigarettes sold in the United States, effective in September 2012.
The FDA’s proposed new warnings are graphic and make it appear as if the inhalation of tobacco is tantamount to the inhalation of hydrogen cyanide with its certain and lethal fate. For those who have the stomach to look at these warnings, they are prominently displayed on the FDA website. In one, we see the ghastly image of a male smoker with smoke coming through a hole in his trachea and the anti-climactic words, “Cigarettes are addictive.” Another choice image compares two pink and healthy lungs with two discolored and pitted lungs over the caption “Cigarettes cause fatal lung disease.” The FDA has ordered tobacco companies to place these various warnings on cigarettes packages, where they must cover over 50 percent of the space. To put it mildly, these second-generation warnings amount to a steep upgrade over the current set of tame written warnings, which in one form or another have been a staple of cigarette packages since 1965.
The severity of these warnings prompted most of the tobacco companies to engage the services of the notable First Amendment lawyer, Floyd Abrams, to mount the successful challenge before Judge Richard J. Leon of D.C.’s District Court. (Atria, which owns Philip Morris, did not participate.) The case thus presents a useful opportunity to look at the history of tobacco regulation in the United States with its various missteps, of which the FDA’s graphic images are only the most recent.
Tobacco is a very old product with a very controversial history...
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