Judge won't bar new federal tobacco marketing regs

RICHMOND, Va. — A federal judge ruled Thursday that tobacco companies hoping to block new restrictions on their marketing have little chance of succeeding.

The companies had asked U.S. District Judge Joseph H. McKinley Jr. to issue a preliminary injunction in a lawsuit they filed in August claiming new tobacco regulations violate their right to free speech.

The companies, including two of the industry's three largest, are challenging provisions of a law that gave the U.S. Food and Drug Administration new authority over tobacco. In a 29-page decision, McKinley outlined the arguments in the lawsuit and found that blocking the provisions was not warranted. The ruling focused on a narrow portion of the legal challenge dealing with modified-risk tobacco products.

R.J. Reynolds Tobacco Co., maker of Camel cigarettes, and Lorillard Inc., which sells the Newport menthol brand, filed the lawsuit in Bowling Green, Ky., along with several other companies, objecting to parts of the Family Smoking Prevention and Tobacco Control Act, enacted in June.

Lorillard did not participate in the request for a preliminary injunction.

Reynolds spokesman David Howard said the company was disappointed in McKinley's ruling and is considering its options.

FDA spokeswoman Kathleen Quinn said the agency is pleased that the court "denied this attempt to keep FDA from enforcing crucial public health legislation."

McKinley discussed the overall case in Thursday's opinion and set forth some of the legal standards he'll apply, but he must ultimately decide whether each regulation the companies are challenging violates free speech, said Floyd Abrams, a lawyer representing Lorillard in the case.

Abrams said there's no way to tell yet how the judge will react when he receives papers from all the parties in the case and hears their arguments in court.

Richmond, Va.-based Altria Group Inc., parent company of the nation's largest tobacco maker, Philip Morris USA, supported the law and has not joined the industry lawsuit.

The lawsuit — which named the government and individual officials as defendants along with the FDA — doesn'tchallenge the FDA's authority over tobacco.

The law lets the agency limit nicotine in tobacco products, ban candy flavorings and block labels such "low tar" and "light" that seem to offer benefits. The law requires tobacco companies to put large, new graphic warnings over any carton images.

The companies say the law, which takes full effect over 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." Their 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 new mandated warnings for cigarettes would relegate their branding to the bottom half of cigarette packaging and make it "difficult, if not impossible, to see."

In its response to the lawsuit, the FDA said the new marketing rules do not restrict free speech and serve a greater public health interest.

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

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.

Altria's brands include Marlboro, the top-selling brand in the U.S.

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Nov 05, 2009 - 6:27 p.m. EDT

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