The recent rule laid out by the FDA for the labeling of cigarette packs with scary images of injury caused by smoking on the upper half of each pack has been opposed by the cigarette industry as an infringement on "commercial speech". Once again, even the wealthy industry doesn't seem to be able to find lawyers who know how to make competent constitutional arguments.
Under the Commerce Clause as originally understood, Congress does indeed have authority to regulate the time, manner, and place of items shipped in interstate commerce, and thus the labeling of packages. However, no power is plenary. Any power must be exercised only for a reasonable public purpose. Thus, it would be improper to require items to be shipped in packages with no labels at all, so that an inspector would have to open each package to find out what is inside. At a minimum, it should have a label identifying the sender and receiver and some code that the receiver and inspector knows how to interpret to tell him what is inside. Congress may reasonable also require the label to identify the contents to an inspector, and also show things like the quantity of the contents.
But what about a requirement to put gruesome images on the upper halves of both sides of packs? In my interpretation of the Commerce Clause, that would be authorized only if cigarettes are shipped across state lines as separate packs. That would also mean each pack would have to be labeled with its own sender and receiver. If packs were shipped in opaque cartons or cases, Congress would have authority to require such gruesome images on the cartons or cases, but not on the packs they contain, if those do not become visible until the carton or case is delivered to its recipient within a state and opened there. Once the recipient accepts delivery the item is no longer "commerce" among the states. At that point only the state has jurisdiction.
Could Congress get around this interpretation by requiring cigarettes not be shipped in opaque containers, but only in containers that are transparent and revelatory of the labels on the packs? Yes, but the cigarette companies could get around that by shipping cigarettes in cases without packs, and putting them into packs after they arrive in a state. Congress would have no authority over the labeling of such local packs.
The FDA would argue, of course, that Congress has power under the "substantial effect" doctrine of the Necessary and Proper Clause to regulate items of commerce beyond the delivery to a shipment recipient within a state, but the counterargument is that it is only power of "carrying into execution" an express power, that is, to make a certain kind of effort, not a power of "carrying into effect", that is, to get a desired outcome. The Supreme Court has never ruled on that line of argument. That is the argument the cigarette companies need to make, not an appeal to the First Amendment.
I am not a smoker, don't like smoking near me, and don't like having to help pay the medical bills through my taxes of persons with smoking-caused morbidities, but this is a case of good intent not being enough to overcome the lack of congressional constitutional authority. The remedy needs to be left with the states.
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