Administrative Law

The Ballad of FDA v. Brown & Williamson

How the FDA lost, and gained, jurisdiction over cigarettes -- to a Newfoundland fishing-boat tune

|The Volokh Conspiracy |

New on YouTube: the Ballad of FDA v. Brown & Williamson, my account of the famous case (FDA v. Brown & Williamson, 529 U.S. 120 (2000)) where the Supreme Court held (in a majority opinion by Justice O'Connor) that the Federal Food, Drug, and Cosmetic Act does not grant the FDA jurisdiction over nicotine and cigarettes. My song goes on to explain how, once Congress and the Presidency were controlled by Democrats in 2009, Congress overturned the Supreme Court's ruling and granted the FDA that jurisdiction.

The tune is from the song "A Boat Like Gideon Brown" by Newfoundland songwriter Frank Dwyer, which you can (and should) hear in this rendition by the Newfoundland folk rock band Great Big Sea. The arrangement and accompaniment in my video is by my former student, musician extraordinaire Josh Pender. Here are the lyrics, which are also in the notes to the video:

In '96, the FDA
Decided nicotine
Was within its jurisdiction
'Cause it's what a drug might mean,
Now this view was one the FDA
Had never urged before,
And rather than accept the rule
Tobacco makers swore
That they would prove in federal court
This theory was unsound —
That's how the FDA was sued
By Wiliamson & Brown,
By Wiliamson & Brown.

They said, "Nicotine's not covered:
We can all take that for granted,
'Cause if FDA could have control
Then they would have to ban it —
But that's clearly not what Congress meant,
So the rule should run aground";
That's what the plaintiffs argued
In Williamson & Brown.

The Food, Drug, and Cosmetic Act,
The statute they expound,
Is on display in FDA
v. Williamson & Brown,
v. Williamson & Brown.

Now Sandra Day O'Connor said,
"The agency is bonkers;
The opposite's confirmed enough
By later Acts of Congress.
And we don't need Chevron deference,
For a clear intent is found";
That's what they say in FDA
v. Williamson & Brown.

Steve Breyer disagreed with her
But his view was voted down —
Didn't get his way in FDA
v. Williamson & Brown,
v. Williamson & Brown.

Then Democrats took Congress and
Some folks thought that was neato,
But they did not move to overturn
'Cause they knew that Bush would veto.
Until 2009 arrived,
Occasion was not found
To pass a statute superseding
Williamson & Brown.

The first months of Obama were
When Congress got around
To overturning FDA
v. Williamson & Brown.

And in Leg/Reg and in Admin Law
The students hunker down
To read the Court's opinions
In Williamson & Brown,
In Williamson & Brown,
In Williamson & Brown.

Finally, see also You Don't Need a Canon (to Interpret My Heart)—my own composition—about statutory interpretation, the interpretive canons, and the Chevron doctrine. (Also arranged and accompanied by Josh Pender.)

The music video version is here (video by Zach Needell & Matthew Kyle Brown):

Here are the lyrics, which are also in the notes to the videos:

Expressio of the unius might be exclusio alterius,
But to represent my thoughts it's not ideal.
And noscitur a sociis and ejusdem generis
Won't help you understand the way I feel.
Presumption of consistency
Would leave it still a mystery,
And legislative history
Would tear my soul apart,
But you don't need a canon
To interpret my heart.

I was silent, and contradictory, and at times I spoke too wordily;
My words did not match up with my desire.
There were gaps and there was surplus and you thought it was absurdity,
And who knows what approach this might require.
I think that I should mention all
My purposes are intentional
But methods too conventional
Are not how we should start —
But you don't need a canon
To interpret my heart.

Don't talk to me of lenity if you value my serenity,
Though my words might not mean quite what they appear,
And don't tell me about avoidance, 'cause it's nothing but annoyance —
I'm sorry if my statements weren't clear…

Long ago I gave you power to issue regulations —
It's a delegation I cannot withdraw.
Implicitly I meant that you should do interpretations
'Cause to me your statements have the force of law.
I give your agency deference
If ambiguous was my reference,
If deciphering my preference
Is less a science than an art —
But you don't need a canon,
I hope you weren't plannin'
To use a textual canon
To interpret my heart,
To use a semantic or substantive canon
To interpret my heart.

I know I said "Finally" up above, but finally finally, here's "Baby Shark", to a possibly recognizable tune (see also here):

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