Big Tobacco v. The FDA: Are the new label requirements constitutional?

Jessica Jackson 

Unless you’ve been living under a rock for the last thirty years, you’re probably aware that smoking cigarettes can cause emphysema, lung cancer, and other dangerous respiratory and pulmonary diseases.  However, every day millions of people across the country continue to light up and inhale these poisons.  In response, the FDA decided recently to require tobacco companies to dedicate half of each cigarette package to anti-smoking warnings, including graphic photos of the possible consequences of smoking.

While warning labels are nothing new—cigarette packages have featured a small print warning ever since Congress passed the Cigarette labeling and advertising act in 1965—four large tobacco companies claim the new label requirement goes too far.  In fact, in their complaint, the companies allege that the new FDA label requirement is a violation of their First Amendment rights.  Among the allegations in the complaint, the tobacco companies complain that these new labels would be increasingly expensive to produce.  It seems ironic that the companies, who have made billions by hiding the deadly effects of their product and manipulating millions of people into becoming addicted to cigarettes, would complain about being required to warn their consumers that this addiction could be fatal.

The FDA and other government health services organizations defend the new requirements, stating that they are necessary to prevent children from smoking and that other graphic campaigns have helped decrease drug and alcohol abuse by children.  Thinking back to my many road trips in Georgia last summer, I must say that anyone who has ever seen a Montana Meth project billboard while driving down the freeway can attest to the utility of such horrifically graphic images.  In fact, the producers of that campaign claim that their horrific images and slogans, such as “Before I had meth I had a daughter- now I have a prostitute”,  led to a 72% decrease in methamphetamine use in Montana in the two years subsequent to launching the campaign.

The question of whether the new label requirement constitutes compelled speech under the First Amendment, or whether the cost of using the new labels in packaging constitutes a taking under the Fifth Amendment, will be decided in federal court later this year.

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