This article explores whether a graphic warning is possible or preferable in the government's fight against tobacco. Part II outlines a brief history of tobacco regulation in the United States. Part III turns to the Family Smoking Prevention and Tobacco Control Act (FSPTCA) and the FDA's initial rulemaking process. Part IV outlines the doctrine of commercial free speech, and Part V discusses why the Rule faced insurmountable challenges under this jurisprudence. Part VI explores how the FDA may overcome these hurdles in its future rulemaking, while Part VII discusses alternative methods through which the government can pursue its anti-tobacco agenda without encroaching on tobacco companies' constitutional rights.
Response or Comment
Ashley Peterson, Comment, Lighting a Fire Under Free Speech: The FDA's Graphic Attempts to Reduce Smoking Rates, 48 U. Rich. L. Rev. 799 (2014).