U.S. AG Eric Holder wrote a letter  to House Speaker John Boehner last Friday, March 14, announcing that the government had decided NOT to seek Supreme Court review of the D.C. Circuit’s R.J. Reynolds decision (2-1), striking down the FDA’s new graphic warning labels on tobacco.  Instead, the FDA will go back to the drawing board and come up with new labels to implement the federal law mandating them.

One can only conclude that the government was spooked by the likelihood of losing — and possibly losing big — in the Supreme Court.  A narrow ruling might have found that the government had not proven the connection between the labels and behavioral change among smokers.  A broad holding might have gone so far as to eliminate much of the government’s power to impose product warning labels or further to substantially strengthen the constitutional protection for commercial speech.  As it re-thinks the design and function of product labels, the FDA should not yield to the more questionable suggestions in the Reynolds opinion, such as that the government should inform but not persuade in its labeling policies or that communications should be rational, but not emotional. 

Other points the FDA should take to heart:  don’t create graphics that are so figurative or digitally manipulated that they are vulnerable to charges that they are not factual.   The course of these labels will establish precedent for food and environmental labels in the obesity and climate change fights to come.