Tobacco Giants File New Suit to Block Warning Labels

Five tobacco companies have stepped up the industry’s legal battle against the U.S. Food  and Drug Administration. In a new lawsuit, the companies complain that the FDA’s plans for graphic cigarette warning labels would force them to make consumers “depressed, discouraged and  afraid” to buy their products, and turn each package into a “mini-billboard” for the government.

As Reuters reports, the cigarette makers, in their new suit in U.S. District Court in Washington, D.C., said the agency’s plans would violate their free speech rights under the First Amendment. The tobacco companies challenging the FDA are led by industry giants Lorillard Inc. and R.J. Reynolds.

The warning labels stem from the 2009 Family Smoking Prevention and Tobacco Control Act, which authorizes the FDA to regulate tobacco products. The labels unveiled in June include images, as The Washington Post put it, of “a man smoking through a tracheotomy hole in his throat, a horribly diseased lung, mottled teeth and gums, a man breathing with an oxygen mask and a man’s body with a large scar running down the chest.”

The warnings will cover the top half of the front and back panels of cigarette packages, and the top 20 percent of printed advertising.

As The New York Times reports, Floyd Abrams, a lawyer representing Lorillard, argues the labels and pictures violate the First Amendment protections for commercial speech. “The government can require warnings which are straightforward and essentially uncontroversial, but they can’t require a cigarette pack to serve as a mini-billboard for the government’s anti-smoking campaign,” Abrams said.

The tobacco companies lost a similar complaint last year in federal court in Kentucky. That ruling is now pending before the Sixth Circuit Court of Appeals. The new suit challenges specific regulations that led to the FDA’s selection of its nine graphic warning labels.

Matthew L. Myers, president of the Campaign for Tobacco-Free Kids, a Washington group supporting the law, expressed little concern about the latest lawsuit, saying it includes nothing new except the reference to the nine labels. “Having raised the same issues before the court in Kentucky and lost, Lorillard is obviously forum shopping to try to find a judge somewhere who will rule in their favor,” Myers said.

The notable exception among the companies participating in the lawsuit is the biggest U.S. cigarette maker Altria Group Inc, whose brands include Marlboro. Altria has  supported the 2009 law, but a spokesman said “certain provisions of the final rule raise constitutional concerns.”

“We continue to  work constructively with the FDA, and reserve our rights and options to protect  the company,” spokesman Bill Phelps said.

In the U.S. about 46 million U.S. adults, or 20.6 percent, smoke cigarettes, a number that has held steady since 2004, according to the Centers for Disease Control and Prevention. Tobacco is expected to kill nearly 6 million people worldwide in 2011, the World  Health Organization said in May.

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