Takings, trade secrets, and tobacco: Mountain or molehill?

In 1996, the Massachusetts legislature passed an act regulating the tobacco industry that included two novel provisions: first, ii required manufacturers of tobacco products sold within the state to disclose brand-specific ingredient lists; second, it enabled the lists' public disclosure. Sponsoring legislators boasted that the law, constituted a significant victory for consumer protection and public health interests, for the act's requirements surpassed the reach of any existing state or federal law. The tobacco industry land eventually, the federal courts) viewed the second provision as an unconstitutional taking of intellectual property. The litigation seemed to promise a portentous foray, into significant questions at the intersection of intellectual property law and takings law, both evolving areas of high interest. However, the Philip Morris cases (so named for the law's primary challenger) turned out to be quirky oddities in Takings Clause jurisprudence, offering few of the momentous insights suggested above. Not only is much less at stake for the tobacco industry and the government than they claim in such cases, but government regulation like the Massachusetts law is currently rare and is unlikely to arise with sufficient frequency in the future to make the issues in the Philip Morris cases ones of broad concern. Therefore the real issue of interest in these cases is how the courts have and will continue to deal with legislation that amounts to malicious mischief directed against private industry, a subcategory of regulatory takings that Hur labels vandalism or "legislative window-breaking." After briefly reviewing established takings jurisprudence and trade secret law, Hur makes the initially, appealing case for the Philip Morris cases' broad significance, then reveals the mountain as a molehill.