to hell with FDA regs—let our kids smoke!

Es­ti­mated reading time is 6 min­utes.

IN RECENT YEARS, cig­a­rette and e-cigarette man­u­fac­turing com­pa­nies have filed three major law­suits against the United States Food and Drug Ad­min­is­tra­tion (FDA). The reason? To try to stop the FDA from im­posing new rules that are in­tended to make these com­pa­nies’ prod­ucts less ap­pealing to con­sumers, and less ac­ces­sible to kids.

“The three cases, which in­volved graphic warning la­bels and FDA over­sight of e-cigarettes, were all de­cided in the industry’s favor by Richard J. Leon, a US Dis­trict Court judge in Wash­ington, DC, whose [pre­vious] rul­ings have demon­strated [his] con­cern about gov­ern­ment over­reach and a tone of deep skep­ti­cism to­ward the FDA’s legal positions.

Given how cases are nor­mally as­signed, the fact that Leon was as­signed to all three is extraordinary—and ex­tra­or­di­narily good luck for the in­dustry, which cur­rently re­mains free of fed­eral re­stric­tions on selling candy-flavored e-cigarettes to chil­dren.

How ex­tra­or­di­nary?

The odds of the cases being ran­domly as­signed to any one judge put the chance of a single judge drawing all three FDA cases at 1-in-1,859.

Well, the Dis­trict Court as­signs cases ran­domly among its reg­ular judges, plus sev­eral se­nior judges with re­duced case­loads. Ac­cording to the court, there were thir­teen reg­ular judges on hand when two of the cases were filed, and eleven reg­ular judges avail­able when the third was filed.

The odds of the cases being ran­domly as­signed to any one judge (1-in-13, 1-in-13, and 1-in-11) put the chance of a single judge drawing all three FDA cases at 1-in-1,859. With se­nior judges in the draw, the odds would be even more remote.

Just an un­likely co­in­ci­dence, court of­fi­cials say. Nothing more. 

Leon joined the court in 2002 after being nom­i­nated by Pres­i­dent George W. Bush. He is con­sid­ered some­thing of a mav­erick con­ser­v­a­tive, and has come down hard on fed­eral agen­cies in other cases.

Judge Leon sided with the com­pa­nies, ruling that [warning la­bels on cig­a­rette pack­ages] were ‘more about shocking and re­pelling than warning,’ and amounted to an ‘im­per­mis­sible ex­pro­pri­a­tion of a company’s ad­ver­tising space for gov­ern­ment ad­vo­cacy.’ A fed­eral ap­peals court up­held the de­ci­sion in Au­gust 2012. [Two Bush ap­pointees in favor, one Clinton ap­pointee dissenting.]

The to­bacco con­trol ad­vo­cates I reached were some­what in­cred­u­lous. It seems ‘very, very strange that some­body who has demon­strated a sus­tained hos­tility to the fed­eral reg­u­la­tion of to­bacco prod­ucts keeps get­ting as­signed to these cases,’ said Richard Day­nard, a North­eastern Uni­ver­sity law pro­fessor and chairman of the Boston-based To­bacco Prod­ucts Li­a­bility Project. ‘It cer­tainly leaves one won­dering what is going on.’ ”

Adapted from an ar­ticle ti­tled “Did Crazy Luck Help Cig­a­rette Makers Side­step These Grue­some Warning La­bels?” by Myron Levin for Fair Warning (Sep­tember 29, 2014).


A hun­dred years ago, it was common knowl­edge that smoking just about any­thing cured foul breath.

How extraordinary, indeed!

Like so many fellow Amer­i­cans, I am an ex-smoker. Started with a pipe in my col­lege years—probably be­cause it made me look au­thorly (?)—and found my way to Lucky Strikes and Camels. (Real men don’t smoke fil­tered cig­a­rettes!) My then light-of-my-life was also a smoker. (Vir­ginia Slims men­thol, be­cause real ladies smoke ladies’ cig­a­rettes!) In 1978, she and I quit to­gether, five years after I bought my first pack.

Haven’t touched a drop of the stuff since!

But that’s not the point, so back to the ar­ticle on Judge Leon above: I have a sys­temic re­jec­tion when anyone of­fers up ‘crazy luck’ or ‘merely chance’ or an ‘un­likely co­in­ci­dence’ as an ex­pla­na­tion for al­most anything—but es­pe­cially when it in­volves pol­i­tics or eco­nomics (co­in­ci­den­tally, both are spelled the same in Eng­lish: ‘m-o-n-e-y’).

Heck, I am more willing to con­sider a sup­pos­edly para­noid con­spiracy theory than I am to an ex­pla­na­tion that re­quires my ac­cep­tance of mul­tiple co­in­ci­dences. And re­member, all you wannabe skep­tics, a con­spiracy theory is merely “an ex­plana­tory propo­si­tion that ac­cuses two or more per­sons, a group, or an or­ga­ni­za­tion of having caused or cov­ered up, through se­cret plan­ning and de­lib­erate ac­tion, an il­legal or harmful event or sit­u­a­tion.” (Wikipedia)

Ages ago, I re­searched ways in which to as­sess whether or not one’s beliefs—and not nec­es­sarily those based on faith—and one’s state­ments based on those be­liefs were plau­sible (or pos­sibly im­plau­sible). One way that I found was to take a state­ment and state its polar op­po­site. If the op­po­site state­ment sounded, well, a wee bit crazy, there’s a good chance that so does the orig­inal statement.

So, re­garding the 1-in-1,859 like­li­hood of the above sce­nario oc­cur­ring and not stir­ring in­credulity and un­rest among those who dis­agree with Judge Leon’s de­ci­sions, let’s just turn the sce­nario around a bit.


RollingStones 1967 smoking 800

As these photos were being taken by Gerlad Mankowitz in 1967, Bill Wyman was thinking, “Can’t you ar­se­w­holes ditch the fags—this photo could wind up in Hit Pa­rader, for God’s sake!”

An unlikely occurrence

What would happen if a ‘mav­erick’ lib­eral judge (an un­likely oc­cur­rence) with a known ‘dis­taste’ for ge­net­i­cally mod­i­fied or­gans was as­signed three cases in­volving GMOs in an­imal and human food sup­plies? The as­sign­ments alone would (un­der­stand­ably and right­fully) draw the wrath of the con­ser­v­a­tive el­e­ments in the main­stream media and the rightwing blogosphere.

It would cer­tainly arouse the ire of Sean Han­nity and Bill O’Reilly, who would argue that there weren’t enough four-leaf clovers in all of Ire­land to cover the luck needed for such an oc­cur­rence! Michael Medved would start looking for movies that show the creeping in­flu­ence of the (Jewish) Hol­ly­wood elite on anti-GMO sen­ti­ment. George Will would find a way to tie the de­ci­sion into the rot in modern base­ball caused by over­paid, health-conscious players.

And should said left o’ center judge rule against the in­ter­ests of the cor­po­ra­tions, oh my but the schidt would re­ally fly then! Every right-wing-radio-talk-show-host in the country would blame the DLM (‘damn lib­eral media’) for this and every­thing else on the day’s agenda!

(No­tice how well those six sep­a­rate words above func­tion as a hy­phen­ated com­pound word, right-wing-radio-talk-show-host? Hell’s Belles, we could make it just one word—rightwingradiotalkshowhost—because they so dom­i­nate the main­stream media that con­ceiving of a left-wing radio talk-show host may soon be­come im­pos­sible. Damn that damn lib­eral media!)

In fact, where is the damn lib­eral media on Judge Leon? Well, Google his name and most of the le­git­i­mate news sites are car­rying sto­ries of his ruling against the NSA’s sys­tem­at­i­cally keeping records of all Amer­i­cans’ phone calls. Our Juror right­fully be­lieves that this be­havior likely vi­o­lates the Con­sti­tu­tion, de­scribing its tech­nology as ‘al­most Or­wellian’ in con­cept. (Which is, of course, very newsworthy.)

But there is nothing on the first three pages of Google on the FDA rulings!

Or, well—sorry, I mean, ‘oh well’—what can a poor boy do, ‘cept to write in an In­ternet blog, ‘cause in sleepy Red­mond town there’s just no place for a street fighting man!

Huh? Wait! Why’d I say that? Stones are rolling around in me wee head! Did I make my point with this piece? Okey­dokey, I‘ve been up since two and can do with a mug of strong strong super-strong coffee and then I can shout and scream and kill the king and rail at all his ser­vants! And I’m doing it again!

Maybe after the cuppa (mugga?), I’ll write a piece about the Stones not being street-fighting men and not in­citing riots in the summer of ’68 and post it on but until then I can al­ways damn that damn lib­eral media.

PS: Did you no­tice in the penul­ti­mate para­graph in Mr. Levin’s ar­ticle that opened this post that Judge Leon re­ferred to the warning on cig­a­rette packs as “gov­ern­ment ad­vo­cacy”? As if placing a warning against the known dan­gers of reg­u­larly in­gesting a proven car­cinogen that kills more than 400,000 Amer­i­cans a year is somehow equiv­a­lent to “ad­vo­cating for or sup­porting a cause or policy.” Wudda joker and as I al­ways say, “To Hell with FDA regs! Let our kids smoke!”


SallyMann candy cigarette 900

FEATURED IMAGE: The photo at the top of this page was cropped from this photo, Candy Cig­a­rette, by Sally Mann. Taken in 1989, the pho­to­graph fea­tures Mann’s daughter Jessie grace­fully bal­ancing a candy cig­a­rette be­tween her small fin­gers. Sally Mann is one of the most well-known and re­spected pho­tog­ra­phers of our time, even being awarded the title of America’s Best Pho­tog­ra­pher by Time mag­a­zine in 2001. Candy Cig­a­rette is part of her 1992 “Im­me­diate Family” se­ries and is con­sid­ered to be one of her most fa­mous works. In fact, many con­sider it to be one of the most iconic im­ages of the 20th cen­tury. (“Sally Man­ne’s ‘Candy Cig­a­rette’ ”)



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