Tobacco companies sue feds over new law

John O'Brien Sep. 1, 2009, 4:15pm

BOWLING GREEN, Ky. (Legal Newsline) - A group of tobacco companies are hoping to put a stop to a new federal law that they say violates their right to free speech.

The Family Smoking Prevention and Tobacco Control Act, signed into law in June by President Barack Obama, is at issue in the lawsuit, which was filed by R.J. Reynolds, National Tobacco, Lorillard, Discount Tobacco City & Lottery, Conwood Company and Commonwealth Brands.

The companies say the act limits their ability to disseminate information about tobacco to adults.

"Prior to the passage of the act, existing federal and state laws already severely restricted Plaintiffs' ability to speak truthfully and freely to adult tobacco consumers - the act now adds layer upon layer of additional restrictions,
thereby virtually eliminating the remaining few avenues for protected speech," the complaint says.

The companies are not challenging any of the provisions that limit speech to minors, but have problems with the several restrictions placed on information to adults.

The act prohibits them from using color lettering, trademarks, logos or any other imagery in most advertisements. Also, a government-drafted anti-tobacco message on packaging leaves the companies with a small portion of the bottom half of cigarette packages "to communicate with adult consumers," the plaintiffs say.

"The obvious purpose of this is to force Plaintiffs to stigmatize their own products through their own packaging," the complaint says.

"Given that consumers in many retail establishments generally must view tobacco products from across a counter-top, the only thing adult consumers are likely to see is the government-drafted message. The bottom half of the cigarette packaging, to which Plaintiffs' branding is relegated, will be difficult, if not impossible, to see."

Another gripe the plaintiffs have is a provision of the act that keeps them from making truthful statements about the relative health risks of tobacco products to individual users if the Food and Drug Administration, one of the defendants in the case, determines that such statements would not benefit the health of the population as a whole.

Kathleen Sebelius, as secretary of the Department of Health and Human Services, is also named as a defendant in the suit.

"Plaintiffs' speech is fundamentally aimed at both protecting and increasing Plaintiffs' market share among adult tobacco consumers," the suit says.

"In the tobacco industry, the success of Plaintiffs' businesses depends on their ability to build brand equity and to reinforce brand loyalty among current adult users of their products and to convince adult consumers currently choosing a competitor's brand to switch.

"In order to place their brand and product information directly into the hands of the adult tobacco consumers who desire it, Plaintiff-manufacturers depend on advertising, product descriptions included on packaging, point-of-sale displays, targeted direct mailings and other methods of communication.

"These types of communication are especially important to Plaintiff-manufacturers because in many cases they must compete against entrenched market leaders."

English, Lucas, Priest and Owsley of Bowling Green is representing the companies. U.S. District Judge Joseph McKinley, Jr., is presiding.

McKinley was nominated in 1995 by President Bill Clinton.

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