Friday, February 03, 2012

FDA Makes Errant Analogy in Defending Graphic Warning Labels; Unclear if It Will Be Able to Address the Actual Constitutional Issues

In oral arguments before Judge Richard Leon of the D.C. District court, the Department of Justice apparently used an analogy to defend the FDA's proposed graphic warning labels. According to this article: "Mark Stern, a Justice Department lawyer, compared the FDA mandates to warnings on packages of charcoal telling people to not use it indoors, noting that 28 people a year die from carbon monoxide poisoning for using charcoal inside their homes. With cigarettes, there are 440,000 deaths, Stern said. 'That's a pretty big interest,' he added. 'It's no secret that the government wants people to stop smoking.'"

The Rest of the Story

As with many of the arguments provided by the FDA to defend the graphic warning labels with a 1-800 quit line phone number on them, this one steers clear of the actual constitutional issues involved in the case. The analogy is an errant one, as the FDA is not requiring a warning to let people know that it is unsafe to use cigarettes in a particular way. The appropriate analogy would be to a required warning on packages of charcoal urging people not to use the product at all because it generates poisonous carbon monoxide when burned, and requiring a picture of a person suffocating to death from carbon monoxide poisoning, or on a respirator unable to breathe.

Would the FDA argue that it is not an infringement on the free speech rights of Kingsford and other charcoal makers to require them to put a prominent warning on charcoal bags urging people not to buy the product?

The constitutional issue is not whether or not the government can require warning labels. The tobacco companies concede that point. The question is whether these are simply factual warning labels or whether they are, instead, compelling speech by manufacturers which is more than factual, and which forces the manufacturers to actually advocate against the purchase of their own products.

The graphic warning labels, as proposed by the FDA, are tantamount to requiring the manufacturers of a particular product to make public statements urging people not to purchase their products. This seems particularly intrusive on First Amendment rights because it is not an issue of restricting speech; it is actually an issue of compelling speech: speech which goes against the interests of the company and forces them to urge their own customers not to purchase the product.

I would really like to see the FDA defend this specific point. So far, it has not done so, and has not even tried to do so. Unless they do so, Judge Leon is not going to change his mind. Nor is an appellate court likely to overturn Leon's decision.

Compact flourescent light bulbs have many advantages, including the use of much less energy than traditional incandescent bulbs. However, they contain mercury, and if a bulb breaks, mercury vapor is released, which can be harmful to humans. In fact, if a bulb breaks, the EPA recommends that people leave the room (although they provide directions on how to clean up the spill, which is confusing because how can you clean it up if you have to leave the room?)

Clearly, it would be constitutional for the government to require a warning label on compact flourescent light bulbs to warn people that the bulbs contain mercury, that this mercury could be dangerous, and that care should be taken not to break the bulb.

However, would it not be an infringement of free speech for the government to instead require a warning on the bulbs which urges people not to buy them and refers them to a 1-800 number of an organization that advocates against the use of compact flourescent bulbs and provides counseling to consumers on how to avoid these bulbs? (And which requires pictures of people dying from mercury poisoning)

This is the apt analogy, rather than the warning against firing up the charcoal grill inside your home.

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