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Several tobacco companies in the US recently launched a lawsuit claiming new FDA legislation abridges their rights under the First Amendment to the US Constitution: the right to freedom of speech. The legislation, the Family Smoking Prevention and Tobacco Control Act, actually muzzles tobacco companies to the point where they are prohibited from telling the truth.

Despite the fact that the new legislation unequivocally places regulatory responsibility of tobacco and tobacco products in the hands of the US FDA (Food and Drug Administration), the tobacco companies are forbidden from clearly communicating that incontrovertible fact.

The Act authorizes the FDA to regulate tobacco products, including reducing or eliminating any constituents used in the manufacture or processing of tobacco, if they believe it is likely to protect public health. But, should the FDA take any action they believe will make cigarettes safer, the tobacco companies will be prohibited from truthfully telling consumers that the FDA has done so.

The legislation was sold to the US Congress by claiming that FDA regulation would make cigarettes safer. But, this provision, specifically denying tobacco companies the right to inform their customers of any such action, makes a mockery of that claim.

In the eyes of the anti-smoker cartel, cigarettes can't be made less hazardous. So, if the FDA demands that the cigarettes companies alter their manufacturing process or remove specific constituents by claiming that it will make cigarettes safer, they will, essentially, be lying. And, even if they're telling the truth, and action taken by the FDA does make cigarettes safer, the tobacco companies will not be permitted to tell their customers lest they be misled into believing that FDA actions have made cigarettes safer. Have I lost you?

The circular logic is both inescapable and ludicrous.

The facts are that the FDA now regulates cigarettes, sets product standards, and tobacco companies are expected to comply with those standards. But, tobacco companies are prohibited from telling consumers what is already public knowledge; a clear violation of their first amendment rights.

Anti-smoking advocate Dr. Michael Siegel pointed out the absurdity of this provision in the legislation in a recent post on his blog. "The FDA legislation is so overly broad in the scope of its speech restriction in this area that a tobacco company executive could not even give a speech at a shareholder meeting in which he reports that the company in the past year has complied with all FDA tobacco product regulations. A company annual report would risk a violation of the law by stating that the company's products comply with FDA standards."

Back in June, 2009, I posted a piece on the Japanese smoking paradox. The Japanese have a substantially higher smoker prevalence rate than North Americans or Europeans. Yet, their lung cancer rates are much lower. Among the factors offered by way of an explanation of this paradox is higher efficiency of filters on Japanese cigarettes and lower levels of carcinogenic ingredients.

But, if US tobacco companies were to introduce such changes to American cigarettes, and thereby reduce lung cancer rates associated with smoking, they would be in violation of the law if they were to make that information available to the public. Even if cigarettes were made safer, tobacco companies would be prohibited from telling anyone.

And, that's the real absurdity of the FDA legislation. It prevents tobacco companies from telling the bloody truth. It's bizarre in the extreme.

According to the brief submitted by the tobacco companies, they are even prohibited from "making truthful statements about their products in scientific, public policy, and political debates - speech that receives the highest level of protection and is subject to strict scrutiny review. For example, one key provision of the Act prohibits Plaintiffs from making truthful statements about the relative health risks of tobacco products to "individual tobacco users," if the FDA determines that such truthful statements would not "benefit the health of the population as a whole."

The lawsuit by the tobacco companies also contests restrictions on advertising and government-mandated graphic warnings on cigarette packs. "Another restriction renders completely ineffective the one place where such color imagery can be used: Plaintiffs' packaging. The top half of the front and back of all cigarette packaging is appropriated by a Government-drafted anti-tobacco message, including shocking, color graphic images and other mandated information, leaving Plaintiffs with just a small portion of the bottom half of their cigarette packages to communicate with adult consumers. The obvious purpose of this is to force Plaintiffs to stigmatize their own products through their own packaging."

It will be interesting to see how this lawsuit unfolds.

Similar provisions in Canada's Tobacco Act were contested by Canadian Tobacco Companies under Canada's Charter of Rights and Freedoms, which states: "Everyone has the following fundamental freedoms: 2(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication."

The government conceded that the provisions were an infringement on the right to freedom of expression under the charter, but argued that limits on that right were justified to protect the public health.

In 2007, Canada's Supreme Court unanimously upheld the Tobacco Act provisions denying the rights of the tobacco companies.

Will American courts place greater value on constitutional rights than their Canadian counterparts?