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 manufactur ers of tobacco products sold within the state to disclose brand-specific in gredient lists; second, it enabled the lists' public disclosure. Sponsoring legislators boasted that the law, constituted a significant victory for co nsumer protection and public health interests, for the act's requirements s urpassed the reach of any existing state or federal law. The tobacco indust ry land eventually, the federal courts) viewed the second provision as an u nconstitutional taking of intellectual property. The litigation seemed to p romise a portentous foray, into significant questions at the intersection o f intellectual property law and takings law, both evolving areas of high in terest. However, the Philip Morris cases (so named for the law's primary ch allenger) turned out to be quirky oddities in Takings Clause jurisprudence, offering few of the momentous insights suggested above. Not only is much l ess at stake for the tobacco industry and the government than they claim in such cases, but government regulation like the Massachusetts law is curren tly rare and is unlikely to arise with sufficient frequency in the future t o make the issues in the Philip Morris cases ones of broad concern. Therefo re the real issue of interest in these cases is how the courts have and wil l continue to deal with legislation that amounts to malicious mischief dire cted 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 init ially, appealing case for the Philip Morris cases' broad significance, then reveals the mountain as a molehill.