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    Tobacco Firms Sue FDA

    New law unfairly restricts the companies' rights to advertise their products to adult tobacco users, suit contends.

    WASHINGTON -- Several tobacco companies, including giants Reynolds American Inc. and Lorillard Tobacco Co., filed suit Monday to block various provisions of the new federal law that placed tobacco industry oversight under the Food and Drug Administration (FDA).

    They charge that the recently enacted law, which greatly restricts the companies’ ability to advertise their products to adult tobacco users, violates their First Amendment rights.

    According to a report in the Wall Street Journal, the companies object to such provisions as requiring cigarette makers to enlarge the size of warning labels so that they cover the top half of the front and back of cigarette packs and include graphic images of such maladies as diseased lungs. As a result, they would have only a small and often-obscured portion of a pack to print their own messages.

    The suit, filed against the FDA in a federal district court in Bowling Green, Ky., home of one of the plaintiffs, Commonwealth Brands Inc., also challenges a rule that restricts the companies’ ability to publicize the relative health risks of certain products such as smokeless tobacco.

    The FDA, which wouldn’t comment on the suit, recently appointed Lawrence Deyton, an antismoking advocate at the Department of Veterans Affairs, as its "tobacco czar" to run its tobacco regulation center, according to the Journal.

    The suit does not include the nation’s largest cigarette maker, Altria Group, which generally supported the FDA bill although it expressed concerns about some of its provisions. A spokesman for Altria declined to comment to the Journal on the lawsuit, but said "our goal is to work constructively with the FDA around some of our concerns."

    A First Amendment lawyer representing Lorillard was quoted as saying the case will center around whether or not Congress went too far in preventing tobacco companies from communicating with adults and keeping adults from receiving the information that tobacco companies want to send to them. The suit does not challenge any provisions of the law addressing tobacco sales to minors.

    The so-called tombstone provisions, requiring tobacco packs to show large images reflecting the health risks associated with smoking, violate First Amendment rights because cigarette makers could only promote their products on the bottom, often obscured half, of the cigarette packs, said the lawyer.

    The suing tobacco companies also feel unfairly restricted by a provision barring them from making truthful statements about the relative health risks of tobacco products if the FDA deems that such statements wouldn’t benefit the health of the entire U.S. population. Such a restriction would hamper the marketing of several products, such as smokeless tobacco.

    Tobacco companies are also getting support from the advertising industry, which sees First Amendment problems with a provision of the law 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.

    In addition to Reynolds, Lorillard and Commonwealth, other plaintiffs include Discount Tobacco City & Lottery Inc. and National Tobacco Co.

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