The Devil’s in the Details

The United States Supreme Court on April 22 declined to hear the tobacco industry’s appeal of a decision by the United States Court of Appeals for the Sixth Circuit which upheld the right of the FDA to mandate that cigarette packaging contain graphic images showing the consequences of cigarette smoking.  In the Sixth Circuit case, the tobacco industry challenged whether the FDA mandates were constitutional.  Their argument was that the First Amendment can’t stop someone from speaking, nor can it force someone to speak.  The tobacco manufacturers weren’t contesting the authority of the FDA to require a textual warning – that’s been a part of cigarette packaging since 1966.  But the notion that the FDA could mandate specific photos seemed a stretch.  But the Sixth Circuit upheld the constitutionality of the regulations, and the Supreme Court’s decision to pass effectively settles the issue.  Sort of.  The Court of Appeals for the D.C. Circuit – which oversees the FDA’s rule making process under the Administrative Procedure Act – found that the FDA’s conclusions justifying the adoption of the rules were not “supported by substantial evidence.”  And so the D.C. Circuit sent the matter back to the FDA to get it right.   So as it stands now, the big issue – the constitutionality of the regulations – seems to be settled.  Whether the FDA can draft provisions that satisfy the D.C. Circuit remains an open question.  You probably have time to catch a smoke before this gets resolved.