The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

About The Volokh Conspiracy Editorial Independence Who we are Books Volokh Daily Email Archives Search DMCA RSS

Statutory Interpretation

"Trendy Eateries May Keep a Secret Menu; the United States Code Does Not"

Eugene Volokh | 8.19.2026 5:42 PM

Some excerpts from the long opinion in R.J. Reynolds Tobacco v. FDA, written by Judge Don Willett and joined in relevant part by Judges Leslie Southwick and James Ho:

When Congress legislates in broad strokes, constitutional trouble sometimes follows. This case presents the opposite problem: Congress legislated with precision, and an agency treated that precision as optional. In the Family Smoking Prevention and Tobacco Control Act (TCA), Congress provided a detailed framework with nine prescribed warning statements that must appear on cigarette packages and advertising, while granting the Food and Drug Administration (FDA) only limited, conditional authority to adjust it. The FDA's rule, however, requires the display of eleven warnings, prompting multiple cigarette manufacturers and retailers (Plaintiffs) to challenge it.

At this preliminary stage, the statutory text points one way: the FDA may require the nine warnings Congress prescribed—no more. The district court agreed and temporarily postponed the Rule's effective date after........

© Reason.com