Epstein on the FDA and Cigarette Labels

The FDA's Ghoulish Cigarette Labels
Richard A. Epstein
April 27, 2013

Recently, the Supreme Court refused to review a decision of the Sixth Circuit that sustained the power of the Food and Drug Administration to require tobacco companies to place ghoulish warnings and images on tobacco packages. The challenge was based on the ground that the forced inclusion of warnings adverse to the interest of tobacco companies was a kind of forced speech that the First Amendment forbade.The argument on the opposite side was that the Congress has extensive powers that allow it to require the FDA to develop warnings and pictures that, in the most forceful way possible, bring the horrors of smoking home to the potential individuals who engage in it.

I approach this issue with mixed emotions. My first awareness of the dangers of tobacco came when I was nine years old and my family took extensive steps to persuade my late physician father to quit smoking, which he did for the rest of his life. I myself have never had the slightest interest in smoking cigarettes and have mounted many a campaign to persuade others to quit the habit.

Perhaps for just this reason, in the 1980s I worked as a legal consultant with Philip Morris in the effort to resist the ultimately successful efforts of the plaintiff’s bar to persuade the federal courts to allow tort actions to be brought against the tobacco companies on the ground that these companies had either understated or concealed the dangers associated with smoking.

Richard A. Epstein