ing prescription drug prices or the qualities of tobacco products based on
successful free speech arguments.
93 Entities and individuals may also argue
that state laws impinging on their free speech rights are unconstitutional, as
illustrated by a dairy in Oregon that challenged the state’s raw milk advertising ban.
94 Rather than banning commercial speech about a product entirely, laws may survive free speech challenges and more effectively influence
public health if they require companies to disclose more information about
a product, as in the earlier case of trans fat labeling.
The Ex Post Facto Clause of the U.S. Constitution prevents government
from retroactively changing legal consequences for an action committed
prior to the law or rule change.
96 Government cannot retroactively punish
someone for buying or selling a legal product if that product is later made
97 Nonetheless federal agencies may apply their rules retroactively to
protect the public’s health where Congress has expressly granted them such
98 In 1994, for example, Congress expressly authorized FDA to regulate dietary supplements in a manner similar to food products.
99 FDA thus
became responsible for keeping adulterated and unsafe dietary supplements
off the market, which meant certain products (e.g., Ephedra) became illegal
to buy or sell even though they had previously been on the market. Congress’ express grant of authority to FDA to regulate these products defeated
manufacturers’ Ex Post Facto claims.
C. Regulatory or Procedural Hurdles
Parties may have strong legal arguments that support product bans in the
interests of public health, but procedural or regulatory missteps may affect
93. Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748,
770 (1976); Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 570 (2001).
94. Mateusz Perkowski, Dairy Challenges Oregon Raw Milk Ad Ban, CAPITAL PRESS
(Nov. 20, 2013),
95. N. Y. State Rest. Assoc. v. N. Y. C. Bd. of Health, 556 F.3d 114, 134 (2d Cir. 2009).
96. U.S. CONST. art 1, § 9.
97. In the context of product bans, the Ex Post Facto clause is often subject to further
argument. See, e.g., Samuels v. McCurdy, 267 U.S. 188, 193 (1925) (stating that during the
Prohibition era the Court held that a state statute prohibiting the possession of alcohol did
not violate the Ex Post Facto Clause because possession is a continuous act. The individual
could not be punished for his behavior or possession of alcohol before the law changed, but
could be punished for his continued possession thereafter).
98. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988).
99. 21 U.S. C. A. § 321(ff) (West, WestlawNext through Pub. L. No. 113-93 (excluding
Pub. L. No. 113-79) approved Apr. 1, 2014).
100. See Nutraceutical Corp. v. Von Eschenbach, 459 F.3d 1033, 1038, 1043 (10th Cir.
2006) (noting that “Congress imposed a duty on the FDA to keep adulterated dietary supplements off the market” and that “FDA correctly followed the congressional directive to
analyze the risks and benefits of EDS in determining that there is no dosage level of EDS
acceptable for the market.”).