R.J. Reynolds Tobacco Co.'s bid to carve out a "free speech" marketing niche for innovative products received a setback..

November 6, 2009 -

See the news briefs entitled: Federal judge rejects request for injunction (to refrain from doing) blocking tobacco law..

R.J. Reynolds Tobacco Co.'s bid to carve out a "free speech" marketing niche for innovative products received a setback yesterday. On November 5th U.S. District Court judge Joseph McKinley denied a motion for a preliminary injunction by Reynolds regarding the Family Smoking Prevention and Tobacco Control Act, which became law in June. The judge ruled that "the plaintiffs have little likelihood of success" in challenging the modified-risk tobacco-products provision of the law.

The companies said they are trying to "protect their First Amendment right to communicate with adult tobacco consumers about their products."

In reaching his decision, McKinley cited the industry's past marketing of "low-tar" cigarettes as evidence that the "substantial harm to others" factor weighed against the manufacturers' request. McKinley also said that it is in the public interest to uphold the provision "and prevent the sale or distribution of purportedly reduced health-risk tobacco products that do not in fact reduce such risk."

A coalition of public-health advocacy groups said in a statement that they "applaud the federal court's decision to quickly and decisively reject the latest attempt by Big Tobacco to frustrate the intent of the new FDA law."

David Howard, a spokesman for Reynolds, said that the company is disappointed by the decision and is evaluating its legal options.

The manufacturers involved in the lawsuit opposed FDA regulation, while Altria Group Inc., the largest U.S. tobacco manufacturer, was in favor. Another reason for the lawsuit is that Reynolds has placed a major emphasis on smokeless-tobacco products to help offset the continuing decline in cigarette sales in the United States.

Some analysts have said that requirement would severely curtail product innovation.
However, Adam Spielman, an analyst with Citigroup Global Markets Inc., said he believes that regulation will not undercut Reynolds' smokeless innovations. "The rules on new products do not require sign-off from the FDA if the product is substantially equivalent health-wise to existing products," he said.

The decision comes at a time when the National Cancer Institute has provided grants for a new series of medical studies on smokeless-tobacco products, some focused on whether the products provide a less harmful alternative to conventional tobacco products.

The institute provided $2.9 million to Wake Forest University School of Medicine for a study on developing strategies to encourage reduced use or even quitting smokeless-tobacco products.

"In the past, the tobacco companies actively promoted filtered brands as ‘better for your health' or ‘double-barreled health protection,' " said Dr. John Spangler, a professor of family and community medicine. He is a lead researcher of the Wake study. "I believe more recently it has been implied," he said. "I think there is a wariness on the part of many people about what the tobacco industry does or say it will do."

R.J. Reynolds tobacco products..

References: RJR try falls short: Federal judge rejects request for injunction blocking tobacco law by Richard Craver, Winston Salem Journal, 11/6/2009; Judge Denies RJR's 'Free Speech' Gambit No preliminary injunction for Family Smoking Prevention & Tobacco Control Act, CSP Daily News, 11/6/2009.

Some related news briefs:
Federal judge rejects request for injunction blocking tobacco law..;
U.S. FDA tobacco chief moving ahead despite facing legal action..; FDA says delaying tobacco authority will harm public..;
FDA deflects challenge from Reynolds, Lorillard, others..;
R.J. Reynolds, Lorillard, others file suit claiming law restricts communication..;