Food and Drug Administration Criticized for Possible Free Speech Violation

David Williams

September 26, 2011

From having the power to initiate food recalls to approving new drugs, the Food and Drug Administration (FDA) is quickly becoming one of the most powerful government bureaucracies. In fact, according to FDA budget documents, “The fiscal year (FY) 2012 President’s Budget request for FDA is $4,360,281,000. This represents a total program level increase of $1,076,215,000 above the amount enacted into law for FY 2010.”  The FDA has also played an increasing role in squeezing the tobacco industry.

The FDA has required that cigarettes contain health warnings on cigarettes since the 1960’s. It now appears that the FDA may have over played that hand with their crusade to “up their game” and put graphic images on cigarette packages to enhance the warning labels.  According to a September 21, 2011 Associated Press article, “ A federal judge peppered a government lawyer with questions Wednesday expressing doubts about whether the Food and Drug Administration can force tobacco companies to post graphic images on their cigarette packages showing the health effects of smoking.  In a two-hour hearing, U.S. District Judge Richard Leon closely questioned Justice Department lawyer Mark Stern on whether the nine graphic images proposed by the FDA convey just the facts about the health risks of smoking or go beyond that into advocacy – a critical distinction in a case over free speech.”

In addition to graphic images, another battle that has taken place across the sea, in the United Kingdom (UK) and Australia, is the requirement of plain packaging for cigarettes.  The experiences in the UK and Australia should be instructive to US regulators as a template for what not to do.

The loudest argument used to support plain packaging is the cessation argument.  While a noble goal, there are skeptics to this assertion.  The UK is experiencing a backlash against plain packaging.  In a September 20, 2011 article in the UK-based Guardian, Richard White writes, “We already have measures to stop children smoking. Cigarettes are always, without exception, kept behind the counter so neither child nor adult has any access to buying tobacco without the cashier physically handing it to them. Even if we accept the rationale that people impulsively want to smoke because the packet lures them in like fish to a worm on a hook, minors are still faced with the problem of needing to be in possession of identification proving they are over 18. Unlike alcohol, cigarettes cannot be pinched off the shelf and placed into a minor’s pocket as they hurry out the door and around the back to spark up.”  With the US having a similar system to purchase cigarettes there is no indication that plain packaging will have any deterrence on children smoking.

The Australian experience with plain packaging shares similarities with the UK, but with a twist, the cost to taxpayers.  According to the Australian-based free market thing tank Institute of Public Affairs, “Bad anti-intellectual property laws by State and Federal Parliaments could require taxpayers to gift up to $3.4 billion per year in compensation to film companies and big tobacco for the loss of their trademarks.”

The FDA, and the entire federal government, is obsessed with regulating and controlling virtually every industry.  The crusade against tobacco is becoming less based on science and on more on social activism. Requiring graphic images on cigarettes is a serious threat to free speech, a cornerstone of the founding of the United States of America, and could be just the next step in the FDA’s crusade against tobacco.