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.
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).
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 authorish (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.
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 in Sean Hannitty 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 librull 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 ratherrarerecords.com 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 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 “arguing for or supporting a cause or policy.” Wudda joker and as I always say, “To Hell with FDA regs! Let our kids smoke!”