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FDA Appeal: “We’re in New Territory Here” 

Jump to full article: Tobacco On Trial, 2012-04-10
Author: Gene Borio


Judge A. Raymond Randolph said, "We're in new territory here".

That's because, as the Court established, there is no case law that says the government may not compel companies to speak in the public interest. Government can make manufacturers label their poisonous products with a prominent skull and crossbones. It can mandate that pharmaceuticals display the risks of their products. Congress first established warning labels on cigarette packs almost 50 years ago.

"And there's no 1st Amendment case law on this??" Judge Randolph asked.

"Not that I know of," replied the DOJ's Mark Stern.

The Government may compel speech, OK, but the question then is: how much? How far can the government go, to what purpose, and for what reason? So our lawyers and judges today were desperately trying to find that "fuzzy at the border" line between providing information and advocacy. As Judge Leon wrote in his ruling, "[T]he line between the constitutionally permissible dissemination of factual information and the impermissible expropriation of a company's advertising space for government advocacy can be frustratingly blurry." Judge Leon found the line clear, but this panel wondered on what bases do you determine where the line is? As Judge Janice Rogers Brown said, can you test for the line between warning and campaigning? "Quit Now," or "Don't Smoke," she felt, is not a warning, but advocacy.

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