A tobacco regulation challenge makes one good point

FOR YEARS, the cigarette, arguably the most dangerous legal product in America, was also one of the least regulated, subject to less government oversight than dental floss. That has finally changed — but now a group of tobacco companies has challenged in court parts of the law that gives the Food and Drug Administration authority to regulate tobacco products.

First, the good news. The plaintiffs aren’t challenging the FDA’s authority to regulate tobacco; that battle appears to be won. The FDA has the power to order the alteration of ingredients or nicotine yields, minimizing the health effects of tobacco use. The law explicitly bans most flavored tobacco products, such as cigarettes with clove or cinnamon flavoring, which should combat underage smoking. The law does not ban menthol — the most popular flavoring — but the FDA should do so once it gets its regulatory framework in place.

However, tobacco companies cite the First Amendment to challenge a slew of restrictions on the marketing and advertising of their products. Although commercial speech enjoys less protection than other expression, the plaintiffs argue that the new rules aren’t narrowly enough tailored to the goal of keeping minors from lighting up. The law, the companies argue, unduly cuts off communication between them and their adult customers.

For the most part, their argument isn’t convincing. The law, to take one provision to which the plaintiffs object, requires an increase in the size and severity of warning labels on cigarette packs. The new labels would replace the relatively tame, outdated and small cautionary notes that have appeared on cigarette packaging for decades, appropriately warning consumers — and, more important, potential consumers — of the risks of using a uniquely harmful product. It’s reasonable to insist that the warnings be made more prominent.

But one aspect of the law seems more problematic, especially given that courts have expanded protections for commercial speech in the past decade or so. The law bars tobacco companies from claiming that one product is less harmful than another unless the FDA determines it’s true. So far, so good: Just as the FDA regulates what can be said about the safety and efficacy of prescription drugs, it should have the authority to assess the scientific basis for claims about tobacco products. But the law then goes one step further, specifying that the FDA can’t sign off on such claims unless doing so would benefit the health of the population as a whole. Even true speech, in other words, might be banned. The government, which has yet to submit its defense to the lawsuit, will have to make clear why such a stiff restriction on commercial speech is justified and necessary to achieve its goals.

© Copyright: September 13, 2009 Washingtonpost

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