The tobacco companies are celebrating a victory over the federal government today, because Federal District Judge Richard Leon just granted their request for an injunction – an order that blocks the Food & Drug Administration’s requirement that tobacco products start being sold with really, really graphic warnings on them about the dangers of humans using tobacco products. (For details, see our earlier posts here and here.)
You can read the November 7, 2011, Order granting the injunction here.
However, it’s not over till it’s over.
The Order only stays things for a certain period of time. Fifteen (15) months, to be exact. This, according to the judge’s ruling, should be enough time for the merits of the controversy to be decided.
Problem is, Judge Leon’s decision already hints as to how that’s going to play out: in his accompanying opinion, he’s ruled that it’s more likely than not that the cigarette manufacturer plaintiffs are going to win on their Constitutional claims against the federal government, i.e., that the proposed regulations violate free speech protections provided in the U.S. Constitution.
Leon is suggesting that the FDA’s regulation goes past an approved notice on the facts of smoking and into a value judgment on the use of tobacco. If the FDA regulation is found to include a value judgment, then it is entering an area of advocacy on the issue, and that’s not allowed under the Constitution.
Lots of folks are very upset about this decision.
Tobacco use kills people – doesn’t seem much point in arguing that as anything but fact these days, right? To get a gist of the growing public response, read the news release for TobaccoFreeKids which hit the news wire today.
