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Tobacco companies file lawsuit claiming new federal regulations violate First Amendment

[JURIST] Several US tobacco companies, including R.J. Reynolds and Lorillard [corporate websites], filed a federal lawsuit [complaint, PDF] Monday challenging a new tobacco regulation law on First Amendment grounds. The lawsuit, filed in the US District Court for the Western District of Kentucky [official website], challenges portions of the Family Smoking Prevention and Tobacco Control Act [text, PDF], which contains several provisions that the tobacco companies allege restrict or ban truthful speech in violation of the First Amendment. The complaint alleges among other things that the act:

severely restricts Plaintiffs' ability to communicate with adult consumers through advertising in magazines, on packaging, through direct mail, and at retail points of sale throughout the country. It also restricts almost every other remaining thoroughfare of speech, such as brand name sponsorship of artistic events in adult-only venues. Indeed, the Act even compels Plaintiffs to carry anti-tobacco messages drafted by the Government by appropriating a large portion of their packaging, simultaneously violating the Plaintiff manufacturers' First Amendment rights and taking their property rights. And many of the Act's provisions are not even limited to commercial speech, but go so far as to prohibit Plaintiffs from participating in core scientific and policy debates regarding their lawful products.

R.J. Reynolds senior vice president and general counsel Martin Holton said [press release] that the suit does not challenge Congress's right to grant the Food and Drug Administration (FDA) [official website] authority to regulate the tobacco industry, but rather certain provisions that they believe unlawfully restrict their free speech.

The Family Smoking Prevention and Tobacco Control Act was approved [JURIST report] by Congress in June and signed into law on June 22 by President Barack Obama [official website]. It attempts to safeguard the public by granting the FDA certain authority to regulate tobacco products, among other provisions. Last year, the House Energy and Commerce Committee [official website] voted 38-12 to approve the bill [JURIST report]. At the time, supporters said the bill would help to inform the public of the risks of smoking and make cigarettes safer. Opponents criticized the legislation, saying it could give the public a false sense of security about smoking and that the FDA might not be able to handle the burden of regulation. The US Senate Health, Education, Labor and Pensions Committee [official website] approved a similar bill [JURIST report] in August 2007. Shortly before that, the former FDA commissioner said that the FDA lacked the resources [JURIST report] to handle tobacco regulation. The FDA first began to regulate the tobacco industry in 1996, but in 2000 the Supreme Court ruled in FDA v. Brown & Williamson Tobacco Corp. [opinion text] that Congress had not provided the FDA with the authority to regulate tobacco products.

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