FDA Takes It On The Chin Again In First Amendment Case

more+
less-

This opinion involves cigarette warnings, so we have to be careful, since Dechert represents tobacco companies. We recommend that our readers interested in First Amendment issues take a look at R.J. Reynolds Tobacco Co. v. FDA, No. 11-1482 (RJL), slip op. (D.D.C. Nov. 7, 2011), with an eye towards the court's analysis of "compelled commercial speech." Although the facts are (we hope) extreme, the court's discussion of the Zauderer "purely factual and uncontroversial information" test for compelled speech leaves us with some interesting hypotheticals to consider. Remember, after New York Times v. Sullivan, private tort claims are on par with other forms of governmental restrictions on speech for purposes of the First Amendment. Query whether plainitiffs demanding warnings about supposed causal relationships that are anything but "uncontroversial" might be running afoul of the First Amendment. Or query further whether the FDA's regulations, which at some points appear to require warning changes based on less than an established causal relationship (more about that here) might also be subject to First Amendment challenge.

We're not in a position to answer these questions. But we think they're worth asking.

Please see article below.

LOADING PDF: If there are any problems, click here to download the file.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Dechert LLP | Attorney Advertising

Written by:

more+
less-

Dechert LLP on:

Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name.
×
Loading...
×
×