Second suit challenges FDA cigarette regulations

Aug. 17, 2011 at 10:43 AM
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WASHINGTON, Aug. 17 (UPI) -- Five tobacco companies filed a second lawsuit challenging the constitutionality of regulations and graphic warning labels under a 2009 U.S. law.

The new suit, filed Tuesday, challenges specific regulations that led to the Food and Drug Administration choosing nine graphic warning labels, The New York Times reported.

The companies lost a similar complaint last year when a U.S. district judge in Kentucky ruled they could be forced to print graphic images and warnings that cover the top half of cigarette packages by the fall of 2012. The ruling was appealed to the Sixth U.S. Circuit Court of Appeals, which hasn't ruled.

Floyd Abrams, a lawyer representing Lorillard, said such strategy of filing two suits wasn't unusual for when controversial regulations follow a controversial law. The new suit was filed in the U.S. Circuit Court for the District of Columbia.

Abrams said the labels and images -- which include a corpse and a man blowing smoke through a tracheotomy hole in his neck -- violate First Amendment protections for commercial speech.

"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 anti-smoking campaign," Abrams told the Times.

Matthew Myers, president of Campaign for Tobacco-Free Kids, said the only new facts in the second lawsuit 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," Myers told the Times.

The lawsuit was filed by Lorillard, the third-largest U.S. cigarette-maker; R.J. Reynolds, the second-largest maker; and three smaller companies. Altria, parent company of Philip Morris, supported the law.

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