Tobacco regulations -- too much of a good thing

The federal government long maintained a love-hate relationship with tobacco, protecting the noxious weed’s legal status -- and subsidizing its cultivation -- even as it required health warnings on packages. In recent years, hate (or at least hostility) has loomed larger in the relationship. Federal payments to tobacco farmers are being phased out, and cigarette taxes continue to rise.

Emblematic of the shift is the Family Smoking Prevention and Tobacco Control Act, signed in June by President Obama, a revolutionary law that gives the Food and Drug Administration authority over tobacco and places rigorous restrictions on its marketing and advertising. But, as often occurs with well-intended legislation, some parts of the law ran afoul of the Constitution. That is what a federal judge in Kentucky has correctly concluded.

Among other restrictions, tobacco companies may no longer sponsor sports tournaments or distribute caps or T-shirts bearing the name or logo of their products. Once-discreet warning labels now must occupy half of the surface of a cigarette package, and they must employ “color graphics depicting the negative health consequences of smoking.” These tough but fair provisions were upheld last week by U.S. District Judge Joseph H. McKinley Jr. But McKinley properly struck down two other sections. One required that most advertisements consist only of “black text on white background.” The other prohibited statements directed to consumers, including “through the media or advertising,” suggesting that the product is approved by the FDA or less harmful because it is regulated.

The first provision needlessly interferes with a tobacco company’s right to publicize its brand over others. As a practical matter, it’s hard to imagine that someone who would be enticed by attractive graphics on a cigarette package would ignore a photograph of advanced mouth cancer on the same container. More serious is the threat to free speech posted by the second provision. It would seem to prohibit even the statement that tobacco is regulated by the agency. Further, as the judge noted, the ban seemingly applies not only to tobacco companies but to politicians and journalists as well.

Obviously the law’s authors were worried that some consumers might think “if it’s regulated by a government agency, it can’t be that bad.” But the fact that the use of heroin is banned, not regulated, does suggest that smoking tobacco is less disfavored by the government than other harmful addictions. Besides, the idea that regulation is tantamount to approval is no sillier than hundreds of inane assertions that emit from the airwaves or clutter online comment boards hour after hour. It’s possible to tackle tobacco without bruising the 1st Amendment.