A U.S. District Judge has struck down the Food and Drug Administration’s new graphic cigarette labels on the grounds that they violate the First Amendment. The labels, depicting visibly horrendous health problems, such as cancerous mouths, obstruct the tobacco company’s freedom of expression, the decision argues. These labels “were neither designed to protect the consumer from confusion or deception, nor to increase consumer awareness of smoking risks; rather, they were crafted to evoke a strong emotional response calculated to provoke the viewer to quit or never start smoking.”
I don’t know if I agree with this reasoning. To me, the labels do in fact seem “designed. . . to increase consumer awareness of smoking risks.” That they do so through the evoking of “a strong emotional response” doesn’t seem all too relevant to me.
The more fundamental issue for me would seem to concern the rights of the tobacco company and their customers to make an exchange of a product that everyone knows is harmful without the meddling of government. This principle would extend to all warning labels, however. What is the difference between a mandated label that simply says that smoking can cause cancer and one that displays an image of the negative effects of smoking at work? It would seem the difference is purely one of degree, not of kind, and although many Americans might be comfortable with the warning being in text and not being visual, I don’t see how this can be a distinction on which a case turns on First Amendment grounds.
If I were going to apply the Constitution to this case, I wouldn’t bother with the First Amendment. I would invoke the long-neglected Tenth Amendment. It is perhaps my favorite of the first ten (although the Ninth is quite good too):
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
This means that the federal government can’t legally do anything that isn’t authorized in the Constitution. I would submit that the Constitution does not allow for the existence of a Food and Drug Administration at all. All regulation of food and drug labeling is, constitutionally, left up to the states. All matters concerning drug regulation of any kind is none of the federal government’s business—with the possible exception of alcohol, where the 21st Amendment interestingly declares alcohol and its importation prohibited in states, territories, and U.S. possessions where it is banned, which might simply be a redundancy but could conceivably involve the federal government in the prosecution of state alcohol laws and the preservation of those laws. Every other drug—tobacco, aspirin, opiates—are none of the federal government’s business.
The Food and Drug Administration is responsible for vast human suffering, on top of being unconstitutional. Gross images on tobacco products are nothing compared to the misery and death unleashed by this agency, which enforces its edicts through heavily armed operatives and prevents Americans from having access to life-saving drugs, killing thousands a year. Everyone should read Robert Higgs’s book on this lethal institution. And see the Institute’s FDA Review website. In a free society people should be allowed to ingest what they wish. But in even a half-decent society, a dying person should be allowed any shot to save his life, so long as it hurts no one else. The FDA systematically deprives the most vulnerable among us even of this most basic right. On many health issues, the rest of the industrialized world is less free than the United States. On this issue, Americans are treated barbarically compared to most of Europe, although the U.S. government has been bent on changing that through the despotic mission of “regulatory harmonization.”
If the issue is the public health, on which many of these cases seem to turn more than on sheer constitutionality, judges should consider the FDA’s track record and strike down the whole agency. I’m strongly against the mandated tobacco labeling. But I’d rather the agency do that, and only that, than its less controversial charge of piling up the corpses in the name of drug safety.