Institute Cheers Court Decision, Cautiously: Free Speech Protected, but FDA Regulation of Tobacco Unwarranted
WASHINGTON, DC April 25, 1997 — The Competitive Enterprise Institute gave one cheer for today's federal court ruling that overturned FDA's attempt to restrict tobacco advertising. The ruling was based not on First Amendment grounds, but on an interpretation of the federal Food, Drug and Cosmetic Act.
CEI General Counsel Sam Kazman stated: "Even though the ruling was not based on constitutional grounds, its effect is still to preserve free speech, and for that we should be thankful. I think a hollowed-out First Amendment is a much greater threat to my kids' future than is Joe Camel. With tobacco advertising under assault by everyone from the federal government to state attorneys general to trial lawyers and public health groups, it's encouraging to see the right of free speech preserved on any ground at all."
In CEI's view, the trigger for FDA control--tobacco's alleged "pharmacological effect"--is not a valid basis for regulation. People do not smoke in order to treat some disease. Moreover, there are many foods that have a pharmacological effect, such as coffee, colas, and chocolate. More generally, the tobacco industry's refusal to acknowledge the risks of smoking is a non-issue, because the public has long recognized that smoking is one of the most dangerous activities of everyday life. The real question is whether adults should be able to knowingly take the risks involved in a product like cigarettes. FDA, however, has little respect for the concept of individual choice. As then-FDA Commissioner David Kessler stated in 1992, "if members of our society were empowered to make their own decisions ... then the whole rationale for [the agency] would cease to exist."
It was FDA's stated purpose of reducing underage smoking that posed the greatest constitutional threat, because child welfare can be a very attractive justification for government expansion. The fact that this rationale did not suffice to undermine one of our basic liberties, the right of free speech, is an encouraging development.
CEI is a non-profit, non-partisan public policy group dedicated to free markets and limited government. For more information, please call Greg Smith at (202) 331-1010 or gsmith@CEI.org.