Health law expert: U.S. Supreme Court curbing FDA health efforts

A health law expert at Indiana University says the U.S. Supreme Court has “narrowed governmental power to preserve the public’s health,” while it broadens corporate freedom to advertise.

Rejected cigarette warning label

Rejected label

“As a result, government today is much more susceptible to challenge when it tries to regulate the promotional activities of the tobacco or pharmaceutical industry,” David J. Orentlicher, co-director of the William S. and Christine S. Hall Center for Law and Health at the IU Robert H. McKinney School of Law, wrote in an opinion piece published in the New England Journal of Medicine.

“The Supreme Court’s increasing sympathy for corporate speech and decreasing deference to public health authorities makes it more difficult for government to protect the public’s health,” wrote Orentlicher, who holds both a law degree and medical degree.

Orentlicher cited as an example the dispute over graphic anti-smoking images on cigarette packs. Congress authorized the graphic warnings in 2009, but once the disturbing images were presented, several tobacco companies successfully sued, alleging that the art violated their First Amendment rights.

The D.C. Circuit Court essentially rejected the FDA’s judgment that the images were necessary and indicated that the companies should not be forced to spend their money disseminating the government’s viewpoint, Orentlicher wrote. The government’s authority to mandate graphic warnings was upheld, though, so the FDA has gone back to the drawing board to see if it can come up with effective images that won’t get struck down in court.

How do they know what will work? It sounds like clarification would be helpful.

“When do graphic warnings cross the line between trying to inform and trying to persuade?” Orentlicher wrote. What misleading information can the graphic warnings address? “(I)f courts will not defer to the judgment of public health authorities about the need for disclosure mandates, what kind of empirical evidence must the FDA present in order to justify the use of graphic warnings?”

A recent news release includes information about the editorial and also a study that examined the relationship between quitting smoking, heart disease, weight gain and diabetes in older women. Jon Macy, a public health expert at the IU School of Public Health-Bloomington, recently discussed two studies that look at the relationship between smoking and stress.

The McKinney Law School is at Indiana University-Purdue University Indianapolis.

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