Big Tobacco Challenges New Restrictions

(CN) – RJ Reynolds and other Big Tobacco companies claim the new Tobacco Control Act violates their freedom of speech and property rights by forcing them to stigmatize their own products and eliminating their right to communicate with tobacco users.




     The Family Smoking Prevention and Tobacco Control Act, signed into law by President Obama in late June, prevents tobacco companies from “using any speech through the use of color lettering, logos, or any other imagery in most advertisements, including virtually all point of sale and direct mail advertisements.”
     Government-mandated warnings have appeared on cigarette packages for more than four decades and on smokeless tobacco for more than two decades, but the companies say the new restrictions violate the First and Fifth Amendments.
     In its complaint in Bowling Green, Ky., Federal Court, Reynolds says the federal government and the FDA are trying to eliminate all communication between the companies and their customers by dictating exactly how and how much marketing Big Tobacco is allowed.
     The companies say they are forced to stigmatize their own products because the Act requires that the top half of the front and back of all cigarette packs display a “Government-drafted anti-tobacco message, including shocking, color graphic images.”
     This would leave a company with just a small portion of the bottom half of its package to communicate with customers.
     The companies say they also are prohibited from “making truthful statements about their products in scientific, public policy, and political debates.”
     While the Act is intended to reduce tobacco use by young people, the companies says the Supreme Court has emphasized that “regardless of the strength of the Government’s interest in protecting children, the level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox.” (Reno v. ACLU (1997)).
     The companies say their customer base consists of people who already smoke or use tobacco so they should be able to reach them in a free marketplace to reinforce their brand loyalty or try to get them to switch.
     Joining RJ Reynolds as plaintiffs are Commonwealth Brands, Conwood Co., Discount Tobacco City & Lottery, Lorillard Tobacco, and National Tobacco Co.
     They seek declaratory judgment and an injunction.
     They are represented by Charles English.

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