Lawsuit challenges tobacco advertising rules

The federal government's new authority to regulate tobacco products is facing its first major legal challenge.

Several tobacco companies filed a lawsuit yesterday claiming that a host of new advertising restrictions -- including a requirement that tobacco products must have larger, graphic warning labels covering half of the packaging -- violates constitutional rights of commercial free speech.

Among the companies that filed the lawsuit were the nation's second and third largest cigarette makers, Winston-Salem, N.C.-based R.J. Reynolds Tobacco Co. and Greensboro, N.C.-based Lorillard Tobacco Co.

Two smaller companies and a tobacco retailer in Kentucky also joined the lawsuit, filed in U.S. District Court in Bowling Green, Ky.

Henrico County-based Altria Group Inc. and its tobacco subsidiaries, including cigarette maker Philip Morris USA, are not plaintiffs in the lawsuit.

Altria, the largest U.S. tobacco company, broke ranks with most other major tobacco companies by supporting FDA regulation of the industry. But the company has said it still has some concerns about aspects of the FDA legislation that Congress passed.

A spokesman for Altria said yesterday that the company was reviewing the lawsuit and had no comment.

The lawsuit challenges some aspects of the Family Smoking Prevention and Tobacco Control Act, passed by Congress and signed into law by President Barack Obama in June.

The law for the first time gives the U.S. Food and Drug Administration authority to regulate tobacco products, which public-health authorities say cause more than 400,000 premature deaths each year in the United States.

"This suit does not challenge Congress' decision to give the FDA regulatory authority over tobacco products, nor does it challenge the vast majority of the provisions of the new law," Martin L. Holton III, senior vice president and general counsel for R.J. Reynolds, said in a statement.

Instead, the lawsuit attacks advertising and marketing restrictions that the FDA would impose under the law, and which the companies claim "severely restrict the few remaining channels we have to communicate with adult tobacco consumers."

The restrictions include a requirement limiting print tobacco advertising to black and white text only, except in narrowly-defined adult publications. The lawsuit also asks the court to find unconstitutional provisions that would require larger warning labels on cigarette packaging.

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

The tobacco companies say the act would keep them from making truthful statements about the health effects of any less harmful products they might develop, if the FDA decides that information might discourage tobacco-users from quitting altogether.

The case seems likely to go as far as the U.S. Supreme Court and could have implications for commercial speech far beyond tobacco, said Ashley Taylor Jr., a partner with the Troutman Sanders law firm in Richmond who has advised companies on advertising and marketing issues.

"I would say that for any company concerned about commercial speech, this case is an important case to monitor," Taylor said. "Although this case arises in the tobacco context, it is really about general commercial speech principles."

Edward L. Sweda, senior attorney for the Tobacco Products Liability Project at Northeastern University, said he sees little chance of the lawsuit succeeding, given that many restrictions on tobacco advertising already have been in place for decades, such as bans on television and radio advertising.

"Traditional, commercial free speech dealing with promoting and marketing products has historically been given less comprehensive First Amendment protection than political speech or free speech by individuals," he said.

Contact John Reid Blackwell at (804) 775-8123 or .

Staff writer David Ress contributed to this report.