FDA abandoning that legal battle over gruesome cigarette labels

posted at 8:41 pm on March 19, 2013 by Erika Johnsen

A couple years back, the federal government via the Food and Drug Administration took it upon themselves to spearhead a brand-new marketing campaign for tobacco companies, suggesting that they plaster their cigarette packages with a certain selection of rather graphic images: How about, say, a picture of a man exhaling smoke through a tracheotomy, or perhaps the tagged toe of a dead human body?

But of course, when I say “marketing campaign” and “suggesting,” what I really mean is “regulatory effort” and “mandating” –  all a part of the government’s constant vigilance in saving us from ourselves, no matter what constitutional rights they have to throw under the bus.

Last year, however, a federal appeals court ruled that regulators had insufficient justification for sidestepping the First Amendment — and the government had until right about now to decide whether or not they wanted to take the fight all the way to the highest court in the land. The AP reports:

The U.S. government is abandoning a legal battle to require that cigarette packs carry a set of large and often macabre warning labels depicting the dangers of smoking and encouraging smokers to quit.

Instead, the Food and Drug Administration will go back to the drawing board and create labels to replace those that included images of diseased lungs and the sewn-up corpse of a smoker, according to a letter from Attorney General Eric Holder obtained by The Associated Press. The government had until Monday to ask the U.S. Supreme Court to review an appeals court decision upholding a ruling that the requirement violated First Amendment free speech protections.

“In light of these circumstances, the Solicitor General has determined … not to seek Supreme Court review of the First Amendment issues at the present time,” Holder wrote in a Friday letter to House Speaker John Boehner notifying him of the decision.

Never fear, nanny-state crusaders: They’ll be back. The FDA reaffirmed their commitment to “undertake research to support a new rulemaking consistent with the Tobacco Control Act” and design some new, more legal-ish labels, but at least this particular limit on commercial-speech regulation lives to fight another day.

It isn’t exactly that I have any particular love in my heart for tobacco companies, but there are a million and one products and behaviors out there that all carry varying degrees of health and safety risks — in which we all choose to engage anyway, as well-acquainted as we generally are with those associated risks. You’ve got to draw the line somewhere, and I prefer to keep the federal government on a short leash.


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