The Family Smoking Prevention and Tobacco Control Act and the First Amendment: why a substantial interest in protecting public health won't save some new restrictions on tobacco advertising

Congress passed the Family Smoking Prevention and Tobacco Control Act in 2009 with the aim of reducing tobacco-related illnesses and deaths by curbing tobacco's appeal to and use by children and adolescents. Legislators considered provisions of the FSPTCA restricting tobacco advertising and labeling key to realizing the law's intended health benefits. But a lawsuit now before the U.S. Court of Appeals for the Sixth Circuit challenges the tobacco marketing restrictions as impermissible restraints on tobacco companies' commercial speech rights under the First Amendment. This article analyzes the constitutionality of each FSPTCA tobacco advertising and labeling restriction in light of U.S. Supreme Court decisions defining the extent of First Amendment protection for commercial speech, prior efforts to restrict tobacco marketing, and the outcomes of legal challenges to some of the prior marketing restrictions. Several of the FSPTCA tobacco advertising and labeling restrictions were drafted with insufficient accommodations for tobacco companies' First Amendment right to convey and consumers' First Amendment right to receive truthful information about lawful tobacco products and are therefore unconstitutional as currently written.

Dental devices: classification of dental amalgam, reclassification of dental mercury, designation of special controls for dental amalgam, mercury, and amalgam alloy. Final rule

The Food and Drug Administration (FDA) is issuing a final rule classifying dental amalgam into class II, reclassifying dental mercury from class I to class II, and designating a special control to support the class II classifications of these two devices, as well as the current class II classification of amalgam alloy. The three devices are now classified in a single regulation. The special control for the devices is a guidance document entitled, "Class II Special Controls Guidance Document: Dental Amalgam, Mercury, and Amalgam Alloy." This action is being taken to establish sufficient regulatory controls to provide reasonable assurance of the safety and effectiveness of these devices. Elsewhere in this issue of the Federal Register, FDA is announcing the availability of the guidance document that will serve as the special control for the devices.

Warnings on alcohol containers and advertisements: international experience and evidence on effects

ISSUES

In light of possible introduction of alcohol warning labels in Australia and New Zealand, this paper discusses the international experience with and evidence of effects of alcohol warning labels.

APPROACH

The report describes international experience with providing information and warnings concerning the promotion or sale of alcoholic beverages, and considers the evidence on the effects of such information and warnings. The experience with and evaluations of the effects of tobacco warning labels are also considered.

KEY FINDINGS

The most methodologically sound evaluations of alcohol warning labels are based on the US experience. Although these evaluations find little evidence that the introduction of the warning label in the USA had an impact on drinking behaviour, there is evidence that they led to an increase in awareness of the message they contained. In contrast, evaluations of tobacco warning labels find clear evidence of effects on behaviour.

IMPLICATIONS

There is a need and opportunity for a rigorous evaluation of the impacts of introducing alcohol warning labels to add to the published work on their effectiveness. The experience with tobacco labels might guide the way for more effective alcohol warning labels.

CONCLUSION

Alcohol warning labels are an increasingly popular alcohol policy initiative. It is clear that warning labels can be ineffective, but the tobacco experience suggests that effective warning labels are possible. Any introduction of alcohol warning labels should be evaluated in terms of effects on attitudes and behaviour.

Cleaning and disinfection of patient care equipment used in the home setting

Bringing medical equipment and devices into the home that has not been properly cleaned and disinfected constitutes an important reservoir for transmission of infection. By effectively combining the use of hand washing, barrier precautions, and meticulous cleaning and disinfection with an EPA-registered product, we should be able to continue to keep the home environment a safe place for our patients to receive care.

FDA regulation of tobacco: blessing or curse for FDA professionals?

Upwards of 400,000 Americans will die that year from the effects of cigarettes, which FDA will now "regulate" very gently, with its hands tied by a slick statutory protection for the largest existing tobacco marketers. Career FDA professionals will be criticized as enablers of mega-marketers' continued sales, working at the margins, arranging the paperwork for protection of megafirms' market share, and sitting by as the deaths and addictive behaviors continue. "Join the Public Health Service, inspired by a public health mission," they were told, and yet they will be unable to do much regulating of the addictive and fatal products for which they now have titular responsibility. This essay observes that these fine FDA professionals are handed the sticky remains of a messy bargain, negotiated in a distracted Congress by expensive lawyers with clients who were potent contributors to political action committees. The only formula that is not secret about the 2009 law is the way in which industry purchased sufficient allegiance to gather the votes for its adoption. The remaining mystery is how FDA could be expected to do these tasks without losing its best and brightest professionals to other fields.

Dietary supplement adverse event reports: review and analysis

The Food and Drug Administration (FDA) works actively to ensure that all the dietary supplements currently in the market are safe for the public. Existing policies are often remodeled and new regulations are developed periodically. A recent change to supplement regulations includes the implementation of a system that allows consumers to contact the FDA or product manufacturer directly to report an adverse reaction as a result of dietary supplement consumption. FDA has employed an adverse event reporting (AER) system that is aimed to police postmarketing effects of dietary supplements.This article will shed light on the importance of tracking serious adverse events with respect to dietary supplements that have already been marketed. Using this data, dietary supplement companies will be able to take the necessary steps to ensure that their products remain safe for the public by removing problematic ingredients from their products and engaging in more effective labeling and product disclaimer practices.

Dietary supplement labeling and advertising claims: are clinical studies on the full product required?

Whether labeling and advertising claims for multi-ingredient dietary supplements may be based on the testing of individual, key ingredients--rather than the actual product--has caused a good deal of confusion. This confusion stems from the dearth of case law and the open-endedness of Federal Trade Commission (FTC) and Food and Drug Administration (FDA) guidance on this issue. Nevertheless, the relevant regulatory guidance, case law and self-regulatory case law--when assessed together--indicate that the law allows and even protects "key ingredient claims" (i.e., claims based on efficacy testing of key ingredients in the absence of full product testing). This article provides an overview of the relevant substantiation requirements for dietary supplement claims and then reviews FTC's and FDA's guidance on key ingredient claims; relevant case law; use of key ingredient claims in the advertising of other consumer products; and the National Advertising Division of the Better Business Bureau, Inc.'s (NAD's) approach to evaluating key ingredient claims for dietary supplements. This article concludes that key ingredient claims--provided they are presented in a truthful and non-deceptive manner--are permissible, and should be upheld in litigation and cases subject to industry self-regulation. This article further concludes that the NAD's approach to key ingredient claims provides practical guidance for crafting and substantiating dietary supplement key ingredient claims.

Obstetrical and gynecological devices; designation of special controls for male condoms made of natural rubber latex

The Food and Drug Administration (FDA) is amending the classification regulation for condoms to designate a special control for male condoms made of natural rubber latex (latex). The special control for the device is the guidance document entitled "Class II Special Controls Guidance Document: Labeling for Natural Rubber Latex Condoms Classified Under 21 CFR 884.5300." The FDA will publish a notice in the Federal Register announcing the availability of the special control guidance document no later than the effective date of this final rule.

Medical devices; hearing aids; technical data amendments. Direct final rule

The Food and Drug Administration (FDA) is amending its regulations governing hearing aid labeling to reference the most recent version of the consensus standard used to determine the technical data to be included in labeling for hearing aids. We are amending the regulations to require that manufacturers may use state-of-the-art methods to provide technical data in hearing aid labeling. FDA is also amending the regulations to update an address and remove an outdated requirement. FDA is amending the regulations in accordance with its direct final rule procedures. Elsewhere in this issue of the Federal Register, we are publishing a companion proposed rule under FDA's usual procedures for notice and comment rulemaking to provide a procedural framework to finalize the rule in the event we receive a significant adverse comment and withdraw this direct final rule.

New Italian device registration requirements

A medical device manufacturer located outside Europe was informed by an Italian distributor that the European Authorised Representative must designate the distributor as the authorised entity when registering the manufacturer's devices in Italy in a new online data bank. This is incorrect. This article discusses the new requirements for registering medical devices in Italy, together with the steps in the registration process and common problems encountered.

Common misconceptions in contact dermatitis counseling

Both physicians and patients hold many misconceptions when it comes to allergen avoidance. Ten commonly held misconceptions are exposed, allowing more accurate approach to the individual with cutaneous allergies.