Aug 17, 2011
Five tobacco companies filed a lawsuit in federal court in Washington late Tuesday challenging the constitutionality of regulations and graphic warning labels under the 2009 law that imposed federal regulation on tobacco.
The companies lost a similar complaint last year in the United States District Court in Kentucky when District Judge Joseph H. McKinley Jr., ruled they could be forced to put graphic images and warnings covering the top half of cigarette packages by the fall of 2012. That ruling is now pending before the Sixth Circuit Court of Appeals.
The new suit challenges specific regulations that led to the F.D.A. selection of nine graphic warning labels, said Floyd Abrams, a lawyer for Lorillard. He said it was not uncommon for such a 1-2 punch when controversial regulations follow a controversial law.
Mr. Abrams argues the labels and pictures violate the First Amendment protections for commercial speech. The graphic images include a corpse and a man blowing smoke out of a tracheotomy hole in his neck.
“The government can require warnings which are straightforward and essentially uncontroversial, but they can’t require a cigarette pack to serve as a mini-billboard for the government’s antismoking campaign,” Mr. Abrams said in an interview.
Matthew L. Myers, president of the Campaign for Tobacco-Free Kids, a Washington group that supported the law, was unimpressed by the new complaint. He said the only new facts were the nine label pictures.
“Having raised the same issues before the court in Kentucky and lost, Lorillard is obviously forum shopping to try to find a judge somewhere who will rule in their favor,” Mr. Myers said in an interview.
The 41-page lawsuit was filed by Lorillard, the third-largest cigarette maker in the United States; R.J. Reynolds, the second-largest; and three smaller companies. Altria, parent company of Philip Morris, maker of the dominant Marlboro brand, supported the new law and has not joined these lawsuits.
Jeff Ventura, a spokesman for the F.D.A., said the agency did not comment on pending litigation.