Few things on the case R. J. Reynolds et al v. United States Food and Drug Administration

A district court just ruled on whether the FDA can force cigarette companies to publish graphic anti-smoking images on packs. The Judge, Richard J. Leon, gives a failed rhetorical analysis in his opinion:

Unfortunately for the Government, the evidence here overwhelmingly suggests that the Rule's graphic-image requirements are not the type of purely factual and uncontroversial disclosures that are reviewable under this less stringent standard. Indeed, the fact alone that some of the graphic images here appear to be cartoons, and others appear to be digitally enhanced or manipulated, would seem to contravene the very definition of "purely factual." That the images were unquestionably designed to evoke emotion - or, at the very least, that their efficacy was measured by their "salience," which the FDA defines in large part as a viewer's emotional reaction, see CompI. ~ 58 (citing 76 Fed. Reg. at 36,638-36,639) - further undercuts the Government's argument that the images are purely factual and not controversial, see, e.g., Defs.' Opp'n at 22-29. Moreover, it is abundantly clear from viewing these images that the emotional response they were crafted to induce is calculated to provoke the viewer to quit, or never to start, smoking: an objective wholly apart from disseminating purely factual and uncontroversial information. 18 Thus, while the line between the constitutionally permissible dissemination of factual information and the impermissible expropriation of a company's advertising space for Government advocacy can be frustratingly blurry, 19 here - where these emotion-provoking images are coupled with text extolling consumers to call the phone number "1-800-QUIT" - the line seems quite clear. --Memorandum Opinion, 11/07/2011, R. J. Reynolds et al v. United States Food and Drug Administration

The Judge ruled in favor of tobacco companies by preserving the status quo and the cigarette package's text warning that smokers routinely ignore now. I don't fault his decision (in fact, I tend to agree), but I do hate his remaining faithful to the ideation of  a "purely factual and uncontroversial information"--a quote originating from Zauderer, describing a concept that has been around forever: A pure observation language. Such a language will never be, and can never be.

Anyways, I hope this case goes to the Supreme Court. How do you warn people about a product that, if used as intended, will almost certainly lead to addiction and quite likely a slow, painful death. (And, more to the Government's unspoken point, the resulting deaths exact a heavy cost on taxpayers every year.)

Which of the following are purely factual and uncontroversial information?:

• Cigarettes cause cancer and death
• Leaving for work today may result in your dying in an accident
• Orange juice contains vitamin C
• Objects in mirror may be closer than they appear