R.J. Reynolds, Lorillard, others file suit claiming law restricts communication...

August 31, 2009 - Two of the three largest U.S. tobacco companies filed suit against federal authorities today, claiming a law that gives the U.S. Food and Drug Administration new authority over tobacco violates their right to free speech.

R.J. Reynolds Tobacco Co. (a unit of Reynolds American Inc.) maker of Camel cigarettes, and Lorillard Inc., which sells Newport menthol brand, filed the federal lawsuit with several other tobacco companies. Joining in the suit filed in U.S. District Court in Bowling Green, Kentucky, are: National Tobacco Co., Discount Tobacco City & Lottery Inc., and Kentucky-based Commonwealth Brands, which is owned by Britain's Imperial Tobacco Group PLC. The makers name the FDA, the government and individual leaders as defendants in the lawsuit.

Part of the bill, passed in June, covers cigarette marketing.


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

In the lawsuit, the companies say they aren't challenging the provisions of the law that directly address tobacco sales to minors. "The case will be about whether Congress has gone too far about preventing tobacco companies from communicating with adults, and keeping adults from receiving the information that tobacco companies want to send to them," said Floyd Abrams, a First Amendment lawyer representing Lorillard, the maker of Newport cigarettes.

Mr. Abrams, of Cahill Gordon & Reindel LLP in New York, said so-called tombstone provisions requiring tobacco packages to show large images reflecting the long-term health risks associated with cigarette smoking violate First Amendment rights because cigarette makers would only be able to promote their products on the bottom half of each side of a package. That part of cigarette packs, he noted, is often obstructed from the view of a customer at a retailer.

Another major complaint by tobacco companies is that they are barred from making truthful statements about the relative health risks of tobacco products if the FDA determines that such statements wouldn't benefit the health of the U.S. population as a whole. The issue could be of importance to companies such as Reynolds that make smokeless tobacco products, like Camel Snus, a type of spit-free smokeless tobacco. Some research has shown that such products are less harmful than cigarettes because they generally contain fewer carcinogens and don't enter the lungs.

Advertisers are also rankled by a provision that requires sponsors of sports, cultural or musical events such as rock concerts to mention only the company's corporate name in their promotions, not its tobacco products.

"The law contains provisions that severely restrict the few remaining channels we have to communicate with adult tobacco consumers," Martin L. Holton III, general counsel for Reynolds, maker of Camel cigarettes, said in prepared remarks.

FDA spokeswoman Kathleen Quinn said the agency does not comment on pending litigation.

The Family Smoking Prevention and Tobacco Control Act allows the FDA to reduce nicotine in tobacco products, ban candy flavorings and block labels such "low tar" and "light." Tobacco companies also will be required to cover any carton images with large graphic warnings.

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

Richmond-based Altria Group Inc., parent company of the nation's largest tobacco company, Philip Morris USA, supported the bill, saying it backs tough but fair regulation.

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

Sweda, a lawyer for the Tobacco Products Liability Project in Boston: "My expectation is that this lawsuit will be ultimately unsuccessful," pointing to previous laws limiting cigarette advertising and marketing that have been in place for more than 40 years.

Altria Group Inc., the maker of Marlboro cigarettes, is absent from the lawsuit.

Reference: RJ Reynolds, other tobacco companies file suit challenging FDA oversight provisions, Associated Press, 8/31/2009; 2 tobacco giants file suit to block marketing rules, NewJersey.com - Associated Press, 9/1/2009; Tobacco Giants Challenge Law by DAVID KESMODEL, LAUREN ETTER and ALICIA MUNDY, The Wall Street Journal, 9/1/2009.