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Pontifications on Poison

Being some ramblings on events associated with poisonous plants.

Tuesday 8th November 2011

If you read, and believe, the right-wing press in the UK, you would think that British judges apply the law to suit their view of the world and that view puts the criminal above the victim and society, in general. If you read the right-wing press carefully and also read other more objective sources, you find that UK judges apply the law as laid down by parliament and, if the results are not what is desired, it is for parliament to make different laws not for judges to interpret the law and base decisions on what the judge thinks parliament intended.

To an outsider, the American judicial system seems to operate in a completely different way. Because the constitution is paramount in the USA, judges can decide that a law passed by politicians reflecting today’s issues can be overturned if the judge believes that it infringes the constitution. That appears to give a judge a great deal of power to decide issues based on his underlying prejudice about how the constitution should order society.

Nicotiana sylvestris, tobacco

Nicotiana sylvestris, tobacco

Certainly, a ruling reported on Monday from a federal District Judge in Washington looks very much as though the judge is applying his opinion to an issue and using the primacy of the constitution to undo government efforts to reduce the harm caused by smoking. That view is supported by his comments that the warnings were 'not factual' and were part of the federal government's 'obvious anti-smoking agenda'. The New York Times has a useful report.

The Obama administration has made reducing tobacco use one of its priorities. The Family Smoking Prevention and Tobacco Control Act was one of the first pieces of legislation under President Obama and legal challenges to it began almost before the ink was dry on his signature.

The Act gives the Food and Drug Administration (FDA) a number of powers aimed at reducing tobacco use. When the FDA announced that it would require much more graphic warnings to appear on cigarette packs, the tobacco companies’ legal armies moved into action. The basis of their complaint was that any control over how cigarettes could be marketed was a violation of the First Amendment right to free speech. The FDA enjoyed an early success when a federal District Judge in Kentucky ruled that this was not the case.

On Monday, however, Judge Richard J. Leon of United States District Court in Washington issued an injunction preventing the new warnings from being introduced because he felt that there was a good chance that the tobacco companies’ view would prevail when the matter is finally decided. Thus any damage done to their businesses before a final outcome would be unlawful assuming the warnings are not permitted by the eventual decision.

It is thought that this ruling will be appealed and, given that there are actions in other district courts, it is said to be likely that the matter will end up in front of the Supreme Court but, as is the American way, it will take many years to reach that point.

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Nicotiana sylvestris, tobacco

The judge’s decision seems to be based on the fact that the new warnings would use staged photographs depicting the effects of smoking, including one of a corpse, which the tobacco companies say is wrong because warnings on packs must be factual and uncontroversial if they are to avoid a First Amendment violation.

There will, of course, always be disagreement between the tobacco lobby and the rest of the world over what amounts to factual information about the effects of smoking but the notion that warnings must be uncontroversial is just bizarre.

It has to be said that some of the reporting of this story might lead you to think that the judge is saying that warnings that harm the tobacco companies business cannot be allowed. That would be a perverse position given that the purpose of the warnings is to reduce the turnover of tobacco companies.

But, in fact, what the judge has said is that it cannot be right to allow something to happen that could cause irreparable damage to the companies’ business if that ‘something’ is, ultimately ruled to be unconstitutional. Of course, what the judge has done has the effect of pre-empting that ultimate ruling so, instead of the apparent carefully structured court system governing the outcome, a relatively lowly district judge has made the decision.

What his ruling ignores, however, is that the will of the people, expressed through their elected representatives, is being frustrated and, in considering only the commercial harm that may be done to the tobacco companies, the actual harm that will be done to any number of people who might have quit when faced with the new warnings is being ignored.

And that harm is every bit as irreparable as any loss of profits to corporate America.