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New FDA Campaign Raises First Amendment Issues

  • Ad Age, Friday, November 12, 2010 11:01 AM
Rich Thomaselli reports that the new graphic cigarette labels unveiled by the Food and Drug Administration and the Department of Health and Human Services are under fire by critics. Some wonder whether shock and awe is really the right way to fight the anti-smoking battle, others question the legality of forcing tobacco companies to run the larger, more explicit warnings on their merchandise.

"I think there's been a movement afoot to have people think that there's a tobacco advertising exception to the First Amendment," says David L. Hudson, a scholar at the First Amendment Center. "There isn't, and there shouldn't be. It's not illegal to smoke in this country."

The FDA is taking public comment on the 36 proposed images through Jan. 9 and then will pick nine of them to go on boxes by Oct. 22, 2012. R.J. Reynolds and Lorillard have already filed suit, saying the warning labels will obscure the companies' brand names. Philip Morris says it intends to participate in the public-comment process.

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Meanwhile, Forbes' Daniel Fisher blogs that a suit to break up the $200 billion tobacco settlement is "an excellent summation of the argument against an agreement that enriched Philip Morris, plaintiff lawyers and the National Association of Attorneys General at the expense of consumers and competing cigarette companies." But he doesn't think it stands much of a chance of making headway in the U.S. Supreme Court.

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