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RJR v. FDA Hearing Feb. 1, 2012–FDA chooses to demur 

Jump to full article: Tobacco On Trial, 2012-02-02
Author: Gene Borio


Throughout the hearing, the big argument was the Constitutional Issue-the 1st Amendment.

Famed 1st Amendment legal scholar Floyd Abrams, who had argued the case for Lorillard in Sept., said FDA not only doesn't address it; but simply states there are no 1st Amendment issues.

To use a cigarette pack's label to inform is legitimate, he said. To use it to try to directly persuade, to force a business to ADVOCATE against its product is not, according to the plaintiffs and Judge Leon. Yet there's some room for judgement here, and Judge Leon said several times, "I'm trying to see where the line was crossed-into advocacy."

Francisco claimed that the 2009 Institute of Medicine report "Ending the Tobacco Problem: A Blueprint for the Nation" formed the "chief evidentiary basis" for the Family Smoking Prevention and Tobacco Control Act. And the IOM report "says right out: 'The primary object is to discourage' smoking." Francisco said the warning labels are basically anti-tobacco advertising, and their purpose is not to inform, but to scare.

Francisco questioned if there were not less restrictive means to achieve the Government's goal, means that were obvious and obtainable. Why, the FDA could use its own new $600 million campaign. "Do they have to use OUR voice?" he asked.

He critiqued the warning label requirements for not being "narrowly tailored"

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