This is a challenge by tobacco companies alleging that a Massachusetts statute was unconstitutional when it required tobacco companies to disclose for each brand the identity of each added ingredient. The lower court held that the statute violated the Fifth and Fourteenth amendments of the United States Constitution by effecting an uncompensated taking, violating the Due Process Clause and the Commerce Clause. The First Circuit reversed on the basis that there was no less burdensome alternative and the disclosure will put consumers in a better position to know if their brand contains harmful additives, and to assess the health risks involved.
Tobacco companies or front groups may challenge any legislative or regulatory measure that affects their business interests. Unlike public interest litigation, these cases seek to weaken health measures. These cases frequently involve the industry proceeding against the government. For example, a group of restaurant owners challenging a smoke free law as unconstitutional.
Measures to regulate the marketing on tobacco packages. This includes both bans on false, misleading, deceptive packaging, as well as required health warnings on packaging.
(See FCTC Art. 11)
A violation of the right to carry on trade, business, or profession of a person’s choice. This right may also be called the right to free enterprise or economic freedom. The industry may argue that a business should be able to conduct its business without government regulation, including whether or not to be smoke free.
A violation of the right to procedural fairness. For example, a party may claim that a government agency did not consult with public or stakeholders when issuing regulations.
A violation of property rights, sometimes in the form of an expropriation or a taking by the government. The tobacco industry may argue that regulations amount to a taking of property rights because they prevent the use of intellectual property such as trademarks.
This is a challenge by tobacco companies alleging that a Massachusetts statute was unconstitutional when it required tobacco companies to disclose for each brand the identity of each added ingredient. The lower court held that the statute violated the Fifth and Fourteenth amendments of the United States Constitution by effecting an uncompensated taking, violating the Due Process Clause and the Commerce Clause. The First Circuit reversed on the basis that there was no less burdensome alternative and the disclosure will put consumers in a better position to know if their brand contains harmful additives, and to assess the health risks involved.