Bridging the Gap between Science and Law: The Example of Tobacco Regulatory Science

CDC, “Ten Great Public Health Achievements—United States, 1900–1999,” Morbidity and Mortality Weekly Report 48, no. 12 (1999): 241–43, at 241.

Parmet W. E. Jacobson P. D. , “The Courts and Public Health: Caught in a Pincer Movement,” American Journal of Public Health 104, no. 3 (2014): 392–392, at 394.

See, e.g., Smith K. , Beyond Evidence-Based Policy in Public Health: The Interplay of Ideas (Hampshire, UK: Palgrave Macmillan, 2013): At 4; Choi B. C. K. , “Good Thinking: Six Ways to Bridge the Gap between Scientists and Policy Makers,” Journal of Epidemiology and Community Health 63, no. 3 (2009): 179–80, at 179.

Green H. P. , “The Law-Science Interface in Public Policy Decisionmaking,” Ohio State Law Journal 51, no. 2 (1990): 375–405, at 405.

See Smith , supra note 3, at 4.

Schuck P. H. , “Multi-Culturalism Redux: Science, Law, and Politics,” Yale Law and Policy Review 11, no. 1 (1998): 1–46, at 17, 25 (noting that “the time frame of science is relatively open-ended,” while “[t]he law is usually in much more of a hurry to decide than science is”).

Edwards C. N. , “In Search of Legal Scholarship: Strategies for the Integration of Science into the Practice of Law,” Southern California Interdisciplinary Law Journal 8, no. 1 (1998): 1–38, at 19 (“The last thing a lawyer wants is academic curiosity when it…jeopardizes her client's interests. Lawyers are remembered for the cases they win….”); see also Schuck , supra note 6, at 24 (“For practicing lawyers, the decisive incentive is the need, consistent with both self-interest and professional ethics, to effectively represent the client's interests, whatever those interests may be.”).

See Blumenthal J. A. , “Law and Science in the Twenty-First Century,” Southern California Interdisciplinary Law Journal 12, no. 1 (2002): 1–53, at 6–7 (noting the tendency of scientists to “focus on specific research issues that, though arguably tractable from a researcher's point of view, are nevertheless atypical in the legal system”).

R.J. Reynolds Tobacco Co. v. Food & Drug Admin. , 696 F.3d 1205 (D.C. Cir. 2012).

Id., at 1219. Failing to acknowledge the methodological limitations, the majority incorrectly concluded that the lack of studies directly linking warnings to reduced smoking rates “strongly implies that such warnings are not very effective at promoting cessation and discouraging initiation.” Id., at 1220. This conclusion was central the court's holding that the warning labels violated the First Amendment's protections for commercial speech.

The FDA's case was also weakened by self-inflicted wounds. See Huang J. , “Cigarette Graphic Warning Labels and Smoking Prevalence in Canada: A Critical Examination and Reformulation of the FDA Regulatory Impact Analysis,” Tobacco Control 23, no. Supp. 1 (2014): i7–i12.

Ashley D. L. , “Tobacco Regulatory Science: Research to Inform Regulatory Action at the Food and Drug Administration's Center for Tobacco Products,” Nicotine & Tobacco Research 16, no. 8 (1014): 1045–1048, at 1045.

Family Smoking Prevention and Tobacco Control Act, Pub. L. No. 111–31, 123 Stat 1776 (2009).

Printz C. , “TCORS Set to Support the FDA's Regulatory Role: Program Designed to Generate Tobacco-Related Research to Inform Policy,” Cancer 120, no. 6 (2014): 771–772.

Federal Trade Commission, Federal Trade Commission Cigarette Report for 2011 (2013).

Paynter J. Edwards R. , “The Impact of Tobacco Promotion at the Point of Sale: A Systematic Review,” Nicotine & Tobacco Research 11, no. 1 (2009): 25–35.

Kim A. E. , “Influence of Tobacco Displays and Ads on Youth: A Virtual Store Experiment,” Pediatrics 131, no. 1 (2013): E88–e95; Kim A. E. , “Influence of Point-of-Sale Tobacco Displays and Graphic Health Warning Signs on Adults: Evidence from a Virtual Store Experimental Study,” American Journal of Public Health 104, no. 5 (2014): 888–895.

Caruso D. B. Peltz J. , “NYC Looks to Bump Tobacco from Prime Retail Space,” Associated Press, March 19, 2013, available at <http://bigstory.ap.org/article/bloomberg-cigarette-plan-gets-praise-criticism> (last visited January 7, 2015) (discussing how RTI's virtual store research related to New York City's proposed law prohibiting the display of tobacco products in retail stores).

Berman M. , Tobacco Product Display Restrictions, available at <http://publichealthlawcenter.org/sites/default/files/nycenter-syn-tobproductdisplaybans-2013.pdf> (last visited January 7, 2015).

See, e.g., Choi , supra note 3, at 179; Smith , supra note 3, at 22.