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Tobacco firms R.J. Reynolds and Lorillard sue to block marketing restrictions

The companies and others joining the suit allege provisions in the Family Smoking Prevention and Tobacco Control Act violate the 1st Amendment.

September 01, 2009|Associated Press

Two of the three largest U.S. tobacco companies sued Monday to block marketing restrictions in a law that gives the Food and Drug Administration authority over tobacco, alleging the provisions violate their right to free speech.

R.J. Reynolds Tobacco Co., maker of Camel cigarettes, and Lorillard Inc., which sells the Newport menthol brand, filed the suit in District Court in Bowling Green, Ky., with several other tobacco companies. It is the first major challenge of the legislation, which was enacted in June.

The tobacco makers say provisions of the law "severely restrict the few remaining channels we have to communicate with adult tobacco consumers," Martin L. Holton III, senior vice president and general counsel for Reynolds, said in a statement.

The Family Smoking Prevention and Tobacco Control Act gives the FDA authority over tobacco for the first time and lets the agency reduce nicotine in tobacco products, ban candy flavorings and block labels such "low tar" and "light." Tobacco companies also must put large graphic warnings over any carton images.

For The Record
Los Angeles Times Thursday, September 03, 2009 Home Edition Main News Part A Page 4 National Desk 1 inches; 47 words Type of Material: Correction
Tobacco lawsuit: An article in Business on Tuesday about a lawsuit filing by tobacco companies challenging federal restrictions on their marketing said that Ed Sweda, a lawyer for the Tobacco Products Liability Project, predicted the suit would be successful. He said the suit would ultimately be unsuccessful.

The companies say in their lawsuit that the law, which takes full effect in three years, prohibits them from using "color lettering, trademarks, logos or any other imagery in most advertisements, including virtually all point-of-sale and direct-mail advertisements."

The complaint also says the law prohibits tobacco companies from "making truthful statements about their products in scientific, public policy and political debates."

The tobacco makers say the new mandated health warnings for cigarettes would relegate the companies' branding to the bottom half of the cigarette packaging, making it "difficult, if not impossible, to see."

The lawsuit doesn't challenge the decision to give the FDA authority over tobacco products.

Joining in the suit were National Tobacco Co., Discount Tobacco City & Lottery Inc., and Kentucky-based Commonwealth Brands Inc., which is owned by Britain's Imperial Tobacco Group.

"We believe that many of the provisions within the act violate our constitutional rights and are not reasonably related to the goal of reducing youth access to tobacco products," Jonathan Cox, president and chief executive of Commonwealth Brands, said in a statement.

An FDA spokeswoman declined to comment.

Ed Sweda, a lawyer for the Tobacco Products Liability Project in Boston, predicted the lawsuit would be successful. He pointed to laws limiting cigarette advertising and marketing that have been in place for more than 40 years.

Floyd Abrams, a lawyer representing Lorillard in the case, said he was confident the suit would be successful.

"Some of these regulations go so far in the direction of stifling the entirely lawful speech of Lorillard to its customers that it violates the 1st Amendment," he said.

The law doesn't let the FDA ban nicotine or tobacco, but the agency will be able to regulate what goes into tobacco products, publicize those ingredients and prohibit certain marketing campaigns, especially those geared toward children.

Richmond, Va.-based Altria Group Inc., parent company of the nation's largest tobacco maker, Philip Morris USA, supported the bill. An Altria spokesman said the company had not yet reviewed the suit and would not comment.

Altria's chief rivals -- No. 2 Reynolds American Inc., parent company of R.J. Reynolds, and No. 3 Lorillard, both of North Carolina -- opposed the bill, saying FDA restrictions on new products would lock in Altria's share of the market.

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