4 out of 5 of the largest tobacco companies have apparently filed a lawsuit so they won’t have to use the new graphic warnings the FDA wants them to put on their product, claiming that it violates their right to free speech.
Apparently, they are also (separately) suing to stop the law that made the graphic warnings possible, 2009’s Family Smoking Prevention and Tobacco Control Act. This law gave the FDA the power to regulate the tobacco industry, including regulating nicotine levels and additives in tobacco products.
Constitutionally, is there any problem with the new graphic warnings? Is this some “slippery slope” that will make libertarian-types and/or pro-business factions cry out dire warnings? Or is it good public policy?
I’m curious to know what others think of the underlying FSP&TCA as well: is it over-reaching by the government or is it constitutionally supported regulation?
The government forces all sorts of labeling on packages. Have done for a long time with no fuss (at least no constitutional fuss).
Although I do wonder with the Supreme Court’s appalling ruling that corporations are equivalent to citizens under the constitution can the government compel speech? Would seem a violation to me if the government could compel me to say “XXX”.
I do not know. That decision might bite the SCOTUS in the ass. (It should…one of the most appalling decisions in the history of the court IMO.)
I’m pretty sure that a sole proprietor (individual citizen) currently has to comply with the same labeling requirements as a corporation, so I don’t think that the Citizens United decision, as appalling as it was, is relevant to this.
Can the government, in an effort to fight childhood obesity, require that McDonald’s Happy Meals be sold only in plain brown boxes bearing the phrase, “Eating This Risks Becoming This,” together with this image?
How does that not fall under the interstate commerce clause? You’re free to say whatever you want as per the 1st amendment, but if you sell a product then you can have that product regulated by the federal government. I see no essential difference, in any case, between the Surgeon General’s warning labels and disgusting graphics. Sure, the graphics are grosser, but we’ve already accepted the precedent that the government can and will tell cig companies to put big ol’ notices on their product that they will fucking murder you.
Seems a rather picayune quibble over degree and not kind.
The 1st Amendment is a restriction on Congress’ power to regulate interstate commerce. The mere fact a product moves through the channels of interstate commerce does not baptize Congress with the authority to regulate the product with absolute impunity from the 1st Amendment. So, Congress would lack the authority to instruct publishers and authors about the title of a book, regardless of the fact the book is moving through channels of interstate commerce.
We can concede Congress has the authority to regulate items moving through the channels of commerce but this power does not permit Congress to regulate the product in such a way as to violate other provisions of the U.S. Constitution, such as the Bill of Rights. Congress’ enumerated powers are limited by the Bill of Rights. So, the essential question here is whether a federal law requiring warning labels of a certain kind implicates the 1st Amendment?
Congress already has the ability to regulate the labels of foods, whether products and radio/television broadcasts are ‘obscene’ or not, and it is already illegal to show cigarette ads on TV, despite the fact that they rather clearly constitute speech and not commerce in and of themselves.
There have been warning labels on cigarettes for quite some time now. I see no essential difference in a warning that says cigarettes will kill you, and a gross picture that shows what cigarettes can do to you. The freedom of speech is not absolute. Just as you cannot shot “fire!” in a crowded theater, you cannot sell cigarettes without warning labels. And now the government has decided to add pictorial representations to the already existing class of warning labels.
Can the government, in an effort to fight childhood obesity, require that Paula Deen’s new book “Delicious Meals for Kids,” be sold only in a plain brown wrapper bearing the warning, “Eating These Recipies Risks Becoming This,” together with that same obese kid image?
Can the government, in an effort to inform consumers of the danger of a product, require that Phillip Morris’ new flavor “Delicious Menthol Lights,” be sold only in packets that bear the warning, " SURGEON GENERAL’S WARNING: Smoking Causes Lung Cancer, Heart Disease, Emphysema, And May Complicate Pregnancy?"
These labels are already in place in other countries, but I do not know how their free speech laws compare. The cigarette companies conveniently gave out carrying cases that hide the offending images on the box.
It ought to be clear by now that the tobacco industry exists at the total sufferance of the FDA. If the FDA said cigarette packages must be constructed of a material that cannot be opened, the tobacco companies would have to do it.
I think the question to be asked is, is this a good idea? Is it a good idea, and does it set a good precedent, for the government to control the sale of a legal product in this way? An actual ban on cigarettes isn’t going to happen, because a lot of people like smoking them. Should the government have the ability to enforce a de facto ban?
This has implications beyond cigarettes. People in the current administration wanted a single-payer health case system, but they couldn’t get it passed. So they’re using insurance regulations not to regulate insurance but to restructure the medical insurance business into a privately administered welfare system. It’s an end-around.
The federal government has the right to regulate interstate commerce. So, no matter how absurd you try to make it, you’re still going to find that there’s no way the government doesn’t have the right. Freedom of speech and press only apply to speech and press. Your packaging is not press.
