Big Tobacco Is Smoking Hot at the FDA

WASHINGTON (CN) - The nation's biggest tobacco companies are smoking hot at a new FDA rule that will force them to put graphic images - such as a dead body on an autopsy table and diseased body parts - on cigarette boxes and ads. Big Tobacco says such forced speech is unconstitutional.

"Such 'warnings' are unprecedented," the companies say in their federal complaint. "Never before in the United States have producers of a lawful product been required to use their own packaging and advertising to convey an emotionally charged government message urging adult consumers to shun their products."

The five plaintiffs include R.J. Reynolds, Lorillard, and the Liggett Group. They sued the U.S. Food and Drug Administration and the Secretary of Health and Human Services.

The rule, which falls under the Tobacco Control Act, will take effect Oct. 22, 2012. It will require all cigarette packages made, starting a month before the deadline, to display the new text and graphic warnings, which must take up 50 percent of the front and back panels of a cigarette box and the top 20 percent of cigarette ads, according to the complaint.

The warnings must contain messages, such as "cigarettes cause cancer" and "smoking can kill you," as well as "color graphics depicting the negative health consequences of smoking."

The tobacco companies say the proposed images are not based upon facts.

"They were to appear in color and they included cartoon images, as well as disturbing, technologically enhanced photographs that used actors to maximize an emotional response from viewers," the complaint states.

The cigarette makers say the FDA acknowledges that the warnings were selected "not to inform consumers of facts that they do not know, but rather to make consumers 'depressed, discouraged, and afraid' to buy tobacco products."

They claim that FDA Commissioner Margaret Hamburg acknowledged that the warnings are meant to turn every pack of cigarettes into a mini-billboard for the government's anti-smoking campaign.

"This is precisely the type of compelled speech that the First Amendment prohibits," the companies say. "While the government may require plaintiffs to provide purely factual and uncontroversial information to inform consumers about the risks of tobacco products, it may not require plaintiffs to advocate against the purchase of their own lawful products."

They cite a 1977 Supreme Court ruling that prohibits the government from compelling companies to use their private property as mobile billboards.

Commonwealth Brands and Santa Fe Natural Tobacco are the other two plaintiffs.

The companies say the new rule violates their First Amendment rights and the Administrative Procedure Act. They want the government enjoined from enforcing the rules.

Big Tobacco has challenged several aspects of the Family Smoking Prevention and Tobacco Control Act since it became federal law in 2009. It has initiated legal battles across the country over the law, claiming that provisions that regulate how tobacco may be advertised and marketed, and the mandated warnings, restrict speech.

The tobacco companies in this case are represented by Noel Francisco with Jones Day.

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