Judge Rules that FDA Tobacco Law Violates Free Speech Rights of Tobacco Companies; Ban on Color and Image-Based Advertisements Thrown Out

Ban on Companies Informing the Public that the FDA Regulates and Approves Tobacco Products Also Thrown Out

A federal judge ruled yesterday that two provisions of the Family Smoking Prevention and Tobacco Control Act enacted by Congress last April are unconstitutional because they violate the free speech rights of tobacco companies.

First, Judge Joseph H. McKinley, Jr. threw out the law's provision that restricts certain tobacco advertisements to a black-and-white, text-only format.

Second, Judge McKinley threw out the law's provision that prohibits tobacco companies from issuing any communication in which it mentions that tobacco products are regulated or approved by the FDA and thus which might lead consumers to think that these products are safer by virtue of that FDA regulation or approval.

The Rest of the Story

The court's striking down of each of these two provisions has very important public health implications.

1. The Striking Down of the Law's Relegation of Cigarette Advertising to Black-and-White, Text-Only Format

This is significant because it eliminates the only real teeth in the cigarette advertising restrictions. As I predicted prior to the law's passage, it is clear that the most restrictive aspects of the law's advertising restrictions will not be upheld. Thus, the health groups were inaccurate in telling the public that the law would significantly reduce youth smoking by curtailing cigarette advertising. The most important advertising restriction has now been thrown out. After all is said and done and the appeals process is concluded, I predict that at least one more element of the advertising restrictions will also be struck down.

2. The Striking Down of the Law's Regulation of Tobacco Companies' Ability to Tell Consumers that Their Products are Regulated and Approved by the FDA

As I predicted months ago, it is a far too sweeping restriction on free speech to tell cigarette companies that they cannot truthfully communicate to consumers that the FDA regulates and approves cigarettes.

That the health groups find this truthful communication so problematic is a testament to the fact that the law is a huge hoax. What bothers the health groups is that consumers may falsely think
that FDA regulation and approval means safer cigarettes. In other words, the health groups know that the law does nothing to make cigarettes safer, despite their own claims to the public that the law will result in safer cigarettes by eliminating hazardous tobacco constituents and thus save lives.

The anti-smoking groups know that the law will do nothing of the sort. Therefore, it would be false to tell the public that FDA regulation of cigarettes is going to lead to a safer product. It is one big hoax.

In acknowledging that FDA regulation does not and will not in fact make cigarettes safer, the bill's supporters have revealed to us that this is a scam: on the one hand, we are being told that the FDA is going to take the toxic constituents out of cigarettes. On the other hand, supporters have acknowledged - in the bill itself - that FDA regulatory standards will not create a safer product.

Because of this concern that the public might actually believe the bill's supporters that the regulation of the product by the FDA will make it safer, combined with the fact that the bill's supporters understand that what they are telling the public is untrue, the supporters snuck that provision into the bill which prohibits the tobacco companies (but not politicians and health groups) from even telling consumers that the FDA regulates tobacco products and that the companies are in compliance with FDA standards.

The bill prohibits tobacco companies from "making any express or implied statement or representation directed to consumers with respect to a tobacco product, in a label or labeling or through the media or advertising, that either conveys, or misleads or would mislead consumers into believing, that ... the product is safe or less harmful by virtue of its regulation or inspection by the Food and Drug Administration or its compliance with regulatory requirements set by the Food and Drug Administration."

The bill's supporters have - above - acknowledged that if manufacturers simply state that they comply with FDA standards, consumers are likely to be misled into believing that the products are safer. Thus, the bill effectively prohibits companies from even telling their consumers that they comply with FDA standards.

On top of being unconstitutional as it violates the free speech rights of these companies by prohibiting the communication of truthful information, this provision exposes the legislation for the scam that it is. The bill's supporters have told their constituents and the American public that the bill will lead to the elimination of toxic constituents from tobacco. Within the fine print of the bill, however, they have admitted that the bill will not lead to a safer cigarette and that if cigarette companies even mention to their customers that they are complying with FDA standards, those consumers will be misled.

Is it not also true, then, that the public health groups supporting this legislation are misleading the public by stating that tobacco companies will be forced to comply with FDA standards?

The rest of the story is that piece by piece, the FDA tobacco law is falling apart and revealing itself to be nothing more than a political ploy which was designed to make policy makers and anti-smoking groups feel good, but which does nothing to actually protect the public's health. It was a way for the anti-smoking groups to look good for their constituents without having to actually do something to protect the public.