Government May Be Violating Tobacco Companies' 1st Amendment Rights

 

by WALTER BRASCH

 

 

A controversial Supreme Court decision less than two years ago could have the unintended consequence of significantly reducing the government's 46-year campaign against cigarettes.

In a 5–4 decision, largely along political lines, the Supreme Court ruled in Citizens United v. Federal Elections Commission (October 2009) that not only were parts of the Bipartisan Campaign Reform Act of 2002 (also known as the McCain–Feingold Campaign Reform Act) unconstitutional, but that corporations and political action committees enjoyed the same First Amendment rights as private citizens.

The government's anti-smoking campaigns, most of them the result of a combination of executive department and Congressional action, essentially have three major parts: anti-tobacco advertising and public service messages, warning labels on cigarette packs, and the outright ban on several forms of tobacco company advertising.

 

Government Advertising

 

Because the First Amendment applies only to governmental intrusion upon free expression, when the government creates advertising (whether TV ads or pamphlets), there can be no significant First Amendment issues. There may be some recourse, however small, in suits against use of taxpayer funds for political purposes, similar to the government's role during the George W. Bush administration in forcing anti-abortion education upon women and health clinics.

 

 

Labels

 

The anti-smoking campaign had begun with the 1964 Surgeon General's report that there was a strong correlation between smoking, lung cancer, and chronic bronchitis.. The following year, Congress passed the Cigarette Labeling and Advertising Act that required every cigarette pack to have a health warning: "Caution: Cigarette Smoking May be Hazardous to Your Health." The Public Health Cigarette Smoking Act of 1969,  taking effect two years later, strengthened the wording on cigarette labels to: "Warning: The Surgeon General Has Determined that Cigarette Smoking is Dangerous to Your Health."

However, the labels had minimal effect on reducing smoking. In 1984, unwilling to face political consequences from an outright ban, such as it enacted against any form of marijuana, Congress passed the Comprehensive Smoking Education Act that required even stronger messages on each pack.

Last week, the Food and Drug Administration, acting within authority of the Family Smoking Prevention and Tobacco Control Act of 2010, ordered all cigarette manufacturers to include nine new designs on a rotating basis on all cigarette packs. The designs take up the top half, both front and back, of every pack. Several of the messages are medically-supported statements that tell users that cigarette smoking causes cancer. One of the graphics is a pair of cancerous lungs next to a pair of non-cancerous lungs. Another label shows a set of rotted teeth. Another shows smoke coming from a tracheotomy hole.

The FDA also requires that government-approved messages appear on one-fifth of every print ad.

Based upon interpretation of the Citizens United case, it would not be an unreasonable stretch to argue that the newly-required messages, with graphics and text, place an undue burden on a corporation's rights of free speech by restricting their own message to less than half. Another argument could be made that by forcing the tobacco companies to accept pre-determined text and graphics is de facto government intrusion upon the rights of free expression.

           

Tobacco Company Advertising

 

The largest concern for First Amendment consideration is in the area of the federal government imposing restrictions upon advertising and information messages.

In 1967, the Federal Communications Commission, citing the Fairness Doctrine, required radio and TV stations that aired paid ads from tobacco companies to run anti-smoking ads at no cost. Unwilling to give up five to ten minutes a day to unpaid advertising, the stations began "voluntarily" dropping cigarette advertising.

The Public Health Cigarette Smoking Act, which had changed the text of warning labels, also banned cigarette advertising on radio and television. In a concession to the tobacco companies, Congress permitted the law to take effect on Jan. 2, the day after the televised football bowl games. The effect of the law was a loss to radio and television stations of about $200 million a year in cigarette advertising, and a significant increase in advertising in newspapers, magazines, and billboards—and not much reduction in smoking.

A 1991 study in the Journal of the American Medical Association concluded that the cartoon character Joe Camel, advertising mascot for Camel cigarettes, was recognized by 3- to 6-year-olds almost as much as they recognized Mickey Mouse and Fred Flintstone. The AMA charged that R.J. Reynolds, manufacturers of Camel cigarettes, had targeted children; the company denied the charges, but eventually settled the lawsuit for $10 million, the funds to go to anti-smoking campaigns.

In 1998, the Tobacco Master Settlement Agreement was the result of years of litigation and negotiation between the four largest tobacco companies, which controlled about 97 percent of all domestic sales, and 46 state attorneys general; four states had already settled. That agreement exempted the companies from class-action tort liability by citizens filing against the companies for health effects from smoking. The federal government also agreed to provide subsidies to tobacco farmers to cover losses based upon reduction of demand for their product. In exchange, the tobacco companies agree to provide $365.5 billion, with most of the funds going to the states for anti-smoking campaigns, and to allow FDA regulation. Among other provisions, the tobacco companies agreed to cut back advertising and sponsorship of activities, especially those that targeted youth. Because this was a civil case settlement, First Amendment concerns were rendered moot.

However, the Family Smoking Prevention and Tobacco Control Act of 2010 is a government-imposed control that brings to question distinct First Amendment concerns. That Act bans tobacco companies from sponsoring all sports and cultural events, which could loosely be interpreted as a violation of the right of association, not specifically mentioned in wording in the First Amendment but extended by the Supreme Court decisions involving First Amendment guarantees. The Act further bans tobacco companies from displaying all tobacco-related images, including their logos, on any apparel, and also requires most advertising to be black lettering on a white background. Both actions are probable First Amendment violations.

A critical side issue melds labels with the media. It would be nearly impossible for any medium to show anyone with a cigarette pack, whether in news or entertainment, without also showing the government's message. Any attempt by the government to regulate what appears on screen or in print would violate the First Amendment.

Without the Citizens United decision, the government's rights to regulate corporate advertising would probably not have significant basis for challenge. With that decision, tobacco corporate entities suddenly have a case.

 

[This column is meant to be a general overview and not a definitive analysis or detailed case study of possible First Amendment violations of government-imposed sanctions against tobacco companies. Dr. Brasch, professor emeritus of mass communications and journalism, is a specialist in First Amendment and contemporary social justice issues. His latest book is Before the First Snow: Stories from the Revolution.]

 

         

Weekly Pulse: Rand Paul, DIY Ophthalmologist

by Lindsay Beyerstein, Media Consortium blogger

Rand Paul, the Republican senate candidate in Kentucky, is a freewheeling libertarian. Instead of getting some fancy board-certification as an ophthalmologist, Paul decided to “go Galt” and make up his own credentials. Paul founded the National Board of Ophthalmology, ostensibly to certify doctors as qualified eye specialists.

The NBO is run out of Paul’s home in Bowling Green, Kentucky. Paul is the president, is wife is the vice president, and her father Hilton Ashby is the organization’s secretary. Normally medical boards sponsor rigorous exams to ensure the highest professional standards in their respective specialties. “I can’t tell you what the organization does,” Ashby told TPM.

It takes a rugged individualist eye doctor to found an entire medical board just for himself and a few friends. When you think about it, it’s kind of hypocritical of Paul to hold a state-approved medical license. If he were a true libertarian he’d found his own medical board and let the free market decide who’s a “real doctor.”

FDA cracks down on DNA tests

The mean old FDA has ordered that companies offering so-called over-the-counter DNA testing prove that their products actually work. Libertarian Alex Tabarok is outraged. He argues that if the tests don’t actually harm anyone, the government shouldn’t restrict them.

At the American Prospect, Tim Fernholtz replies that the FDA’s decision is just common sense. If a company is claiming to provide medical information, the onus is on them to prove that they are informing the public accurately. Besides, even if the test itself is harmless the results of the test could have life-altering consequences.

Michael Mechanic reports in Mother Jones that one woman became convinced that she’d been the victim of a hospital baby mixup when a over-the-counter DNA test showed that her son wasn’t hers. Kevin Drum of Mother Jones applauds the FDA for getting involved but wonders aloud whether over the counter DNA testing is really that much different from astrology or other dubious prediction methods that are perfectly legal and protected by the First Amendment. Should Magic 8-Balls be allowed to market themselves as pregnancy tests? Signs point to no.

HIV in the Motor City

Former White House staffer Van Jones is raising the alarm about HIV in Detroit, as Todd Heywood reports in the Michigan Messenger. HIV rates in Brooklyn and Washington, D.C. have garnered national headlines, but the crisis in Detroit has gone largely unnoticed. Over half of the zip codes in Detroit report HIV prevalence rates of at least 3%. In the most severely affected zip codes, 6% of the population is HIV positive, an infection level on par with Uganda.

Modeling Christian behavior

A self-proclaimed Christian school in Florida fired a pregnant teacher because she admitted to conceiving her child three weeks before her wedding. Jaretta Hamilton was fired from Southland Christian School for telling the truth about premarital sex, Joseph DiNorcia reports in RH Reality Check. By all accounts Mrs. Hamilton’s job performance was fine. Instead of bearing false witness, she answered an intrusive question truthfully. Apparently the school felt it was more “Christian” for Hamilton’s baby to be born to an unemployed mother. Hamilton is suing for discrimination.

This post features links to the best independent, progressive reporting about health care by members of The Media Consortium. It is free to reprint. Visit the Pulse for a complete list of articles on health care reform, or follow us on Twitter. And for the best progressive reporting on critical economy, environment, health care and immigration issues, check out The Audit, The Mulch, and The Diaspora. This is a project of The Media Consortium, a network of leading independent media outlets.

 

 

Weekly Pulse: FACE the Facts

by Lindsay Beyerstein, Media Consortium blogger

In 1993, anti-choice extremists murdered a doctor, burned 12 buildings, set off a bomb, and blockaded 66 abortion clinics. The following year, President Bill Clinton signed the Freedom of Access to Clinic Entrances (FACE) Act. FACE made it a federal crime to obstruct a clinic or intimidate patients and providers.

Wendy Norris of RH Reality Check reports that, in the intervening 16 years, the Justice Department has only prosecuted 19 civil and 45 criminal cases under FACE. Abortion provider Dr. George Tiller was assassinated last year by a hardcore clinic protester, and many asked if the FACE Act was being enforced.

Norris’s story is part of a series on FACE published by RH Reality. The next installment will explore how one radical anti-choice protester has managed to terrorize the same clinic for 30 years with apparent impunity. Kudos to the Guggenheim foundation for funding this important and timely series, and to the John Jay College Center on Media, Crime and Justice for providing editorial input.

The Pill and I

May 9th is the 50th anniversary of the FDA’s approval of Enovid, the first birth control pill. Care2 contributor Ann Pietrangelo, who recently celebrated her own 50th birthday, reflects on how the Pill changed history:

I went through my entire reproductive life in a way that my female ancestors, indeed my own mother, could scarcely have imagined. The Pill and other contraceptive choices were always available to me. I have never had to face the dreaded abortion decision, but throughout my reproductive years, I had the peace of mind of knowing that such a decision, difficult though it would be, was mine to make. I, and millions of women of my age group and younger have been most fortunate. We’ve lived a different kind of life than would have been possible in another time and another place.

Anti-”personhood” coalition kicks off

A new group has united to fight Colorado’s proposed “egg as person” ballot initiative, Joseph Boven of the Colorado Independent reports.  The organization calls itself Protect Families, Protect Choices (PFPC). If Amendment 62 passes, it would effectively outlaw abortion, stem cell research, and even some forms of contraception. Women who drink, use drugs, or attempt suicide could face criminal charges if the ballot initiative becomes law.

The Colorado measure is one of of many similar measures proffered by anti-abortion activists in state legislatures around the country. The last time Coloradans voted on whether to give fertilized ova the full complement of rights under state law, 73% voted against the measure. If the bill passes, will frozen embryos be able to own property? Could Coloradans evade their creditors by signing their houses over to zygotes?

Will health care reform save Democrats?

In The Nation, Katherine S. Newman and Steven Attewell tackle the question on everyone’s mind: Will health care reform change the political fortunes of President Barack Obama and the Democrats? They warn that Democrats shouldn’t expect short-term political gains, even if reform is ultimately regarded as a success story:

For some time to come we can expect the firestorm of opposition to health care reform that is unfolding today to persist, even from people who stand to benefit from the provisions of the new law. The rose-colored glasses through which we sometimes view the legacy of the New Deal and the Great Society often obscure how contentious the debates were or how long they continued after the passage of key legislation. We should not be deterred by the noise coming out of the Tea Party. The weight of history is against them.

Passive aggressive red states

Suzy Khimm of Mother Jones sees trouble ahead: So far, at least 15 states have refused to create high-risk health insurance pools. The refusniks are red states hostile to health care reform. High-risk pools are a stopgap to provide coverage for people with preexisting conditions. Insurers are free to discriminate against sick people until 2014, and high risk pools are supposed to cover those who can’t buy coverage in the meantime.

Khimm explains that the federal government will have to step in and create high-risk pools if states aren’t willing to do so. Health care reform left a great deal of power in the hands of states. The stage has been set for a grim power struggle, a bureaucratic battle of attrition.

This post features links to the best independent, progressive reporting about health care by members of The Media Consortium. It is free to reprint. Visit the Pulse for a complete list of articles on health care reform, or follow us on Twitter. And for the best progressive reporting on critical economy, environment, health care and immigration issues, check out The Audit, The Mulch, and The Diaspora. This is a project of The Media Consortium, a network of leading independent media outlets.

 

 

Weekly Pulse: The Pill at 50 and Oklahoma's Extreme Ultrasound Law

by Lindsay Beyerstein, Media Consortium blogger

Fifty years ago, the Food and Drug Administration approved the first birth control pill. Needless to say, the repercussions of this medical and public policy breakthrough are still being felt today.

Catherine Epstein of the Women’s Media Center thinks it’s significant that we celebrate the date a U.S. government agency approved the Pill, as opposed to the anniversary of its invention. The Pill has been at the center of a power struggle from the very beginning:

The pill has been under ideological fire since the first tiny tablet hit a woman’s palm. And the impact it’s had on women’s autonomy and freedom has been – as decades have passed – nearly equal to the fear (and subsequent restriction) it’s instilled in those who believe in curtailing reproductive rights.

Which came first?

Michelle Goldberg of the American Prospect takes up a longstanding debate: Did the Pill liberate women, or did it take a feminist revolution to make the Pill relevant? Call it a chicken and ovum problem: American women were able to use the Pill to wrest control of their reproductive destinies because they had a certain level of autonomy to begin with.

Women didn’t immediately embrace the pill when it came on the market because the stigma of divorcing sex and reproduction was still too great. Arguably, society’s attitudes about sex and reproduction had to evolve before the Pill could catch on. As Goldberg notes, oral contraceptives are widely available in Saudi Arabia, yet they pose no apparent threat to the patriarchy. I would argue that reproductive freedom is a positive feedback loop. Women who control their fertility are in a better position to push for even more autonomy through education, paid work, and social activism.

Reproductive rights and the Supreme Court

The battle over reproductive rights is far from over. With the impending retirement of Supreme Court Justice John Paul Stevens, all eyes are on President Barack Obama as he mulls the shortlist to replace the Court’s leading liberal. Interestingly, the reputed front-runners are all white women: Solicitor General Elena Kagan, Judge Diane Wood of the 7th Circuit Court of Appeals, Judge Merrick Garland of the D.C. Circuit, and Michigan governor Jennifer Granholm.

Paul Waldman of the American Prospect casts a jaded eye on the upcoming confirmation battle. He predicts a good, old fashioned culture war brawl. He notes that the Republicans are already preparing to paint Wood as an “abortion rights extremist,” if she gets the nod, according to early opposition research obtained New York Times.

Everything is not OK

Speaking of abortion rights, Rachel Larris of RH Reality Check reports that the Center for Reproductive Rights has filed a lawsuit challenging Oklahoma’s new law, which forces women to undergo ultrasounds prior to obtaining abortions. The Center argues that the law is unconstitutional because it violates a woman’s right to privacy by forcing unwanted information on her and impinging upon doctor/patient confidentiality.

Monica Potts of TAPPED floats the idea that, because these mandatory ultrasounds typically involve a vaginal probe, the Oklahoma law might violate the state’s rape laws.

WellPoint caves to House Dems

Finally, some good news on the women’s health front. Evan McMorris-Santoro of Talking Points Memo reports that health insurance giant WellPoint caved to political pressure from House Democrats and agreed to stop dropping sick customers.

WellPoint achieved nationwide notoriety in recent weeks when it was revealed that automatically reviewed the records of women diagnosed with breast cancer (and other ailments) to see if they had any unreported preexisting conditions that might justify terminating their coverage. This practice will become illegal when the health care reform legislation takes effect, but WellPoint has agreed to stop ahead of schedule.

Action Urged on Neglected Diseases

In the Progressive, Dr. Unni Karunakara and Dr. Bernard Pecoul urge the Obama administration tackle more neglected tropical diseases. Obama has already pledged unprecedented aid to fight five neglected ailments afflicting the developing world. Krunakara and Pecoul argue that this isn’t enough. The administration is fighting the good fight on malaria, but sleeping sickness, visceral leishmaniasis, Chagas disease and Buruli ulcer, which affect a billion of the world’s poorest people.

This post features links to the best independent, progressive reporting about health care by members of The Media Consortium. It is free to reprint. Visit the Pulse for a complete list of articles on health care reform, or follow us on Twitter. And for the best progressive reporting on critical economy, environment, health care and immigration issues, check out The Audit, The Mulch, and The Diaspora. This is a project of The Media Consortium, a network of leading independent media outlets.

 

 

Denture Cream With Zinc Latest Unsafe Product to Leave the Market

From the Wall St Journal

GlaxoSmithKline PLC Thursday warned consumers about denture creams that contain zinc and said it had taken "voluntary, precautionary" measures to stop making and supplying those products, which it said have been linked with health problems if used excessively over a long period.

"We are taking these actions because we have become aware of potential health problems associated with the long-term excessive use of our zinc-containing denture adhesive products," the company said on its Web site.

Glaxo denture-cream products that contain zinc include Super PoliGrip Original, Ultra Fresh and Extra Care products. The company said it will reformulate the denture adhesives

There has been a succession of stories recently about people getting dreadful diseases from use of popular denture creams and Glaxo is probably feeling the liability heat.

Plaintiff's attorneys have been filing lawsuits and trying to call attention to the dangers as this story from the St Petersberg Times shows:

Denture adhesive manufacturers “didn’t tell anybody the right amounts to use. They didn’t warn people that if they didn’t use the right amounts that they could be crippled,” said attorney Ed Blizzard, who filed a suit in Miami in December against GlaxoSmithKline on behalf of the family of Rodney Urbanek.

Urbanek, a longtime Super Poligrip user, started having trouble walking in late 2006, according to his wife, Gisela. Eventually he became paralyzed below the waist and died in May 2008 at age 64 in a hospital in South Carolina, where the couple moved after living in Miami for many years. Blizzard said an autopsy showed Urbanek’s paralysis and death were linked to his use of denture adhesive.

Blizzard has launched a web site called Denture Cream Justice to advise those who fear they have been harmed by zinc in their denture cream. He blogged about the dangers of denture cream at Huffington Post:


There's more...

Diaries

Advertise Blogads