Public Health versus Private Freedom?

There is widespread agreement that governments ought to prohibit the sale of at least some dangerous products. But it seems odd to hold, as a US court recently did, that the state may prohibit the sale of cigarettes, but may not regulate their packaging as it sees fit to promote public health.

PRINCETON – In contrasting decisions last month, a United States Court of Appeals struck down a US Food and Drug Administration requirement that cigarettes be sold in packs with graphic health warnings, while Australia’s highest court upheld a law that goes much further. The Australian law requires not only health warnings and images of the physical damage that smoking causes, but also that the packs themselves be plain, with brand names in small generic type, no logos, and no color other than a drab olive-brown.

The US decision was based on America’s constitutional protection of free speech. The court accepted that the government may require factually accurate health warnings, but the majority, in a split decision, said that it could not go as far as requiring images. In Australia, the issue was whether the law implied uncompensated expropriation – in this case, of the tobacco companies’ intellectual property in their brands. The High Court ruled that it did not.

Underlying these differences, however, is the larger issue: who decides the proper balance between public health and freedom of expression? In the US, courts make that decision, essentially by interpreting a 225-year-old text, and if that deprives the government of some techniques that might reduce the death toll from cigarettes – currently estimated at 443,000 Americans every year – so be it. In Australia, where freedom of expression is not given explicit constitutional protection, courts are much more likely to respect the right of democratically elected governments to strike the proper balance.

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