- Associated Press - Wednesday, July 27, 2011

CINCINNATI (AP) The free-speech rights of tobacco companies are improperly restricted by a federal law giving the Food and Drug Administration sweeping regulatory powers over the industry, an attorney for the tobacco companies told a federal-judge panel Wednesday.

Noel Francisco, a lawyer for R.J. Reynolds Co., said the Family Smoking Prevention and Tobacco Control Act - which allows the FDA to impose graphic warnings about the dangers of smoking and to regulate how tobacco companies market and advertise their products - stops companies from making statements that are true and not misleading.

“It draws no distinction between the good and the bad,” Mr. Francisco told a three-judge panel from the 6th U.S. Circuit Court of Appeals. “It impermissibly restricts the adult population to what is fit for children.”

U.S. Department of Justice attorney Mark Stern told the judges, hearing a case brought on behalf of multiple tobacco companies, that the product is “lethal and addictive” and the government has a right and duty to regulate how it is sold.


“This product would be banned if it came out now,” Mr. Stern said.

The appeals panels is weighing whether to overturn a January 2010 ruling by U.S. District Judge Joseph H. McKinley Jr. in Bowling Green, Ky., who rejected much of the first major challenge to the law brought by tobacco companies.

Judge McKinley upheld most of the marketing restrictions in the law, including a ban on tobacco companies sponsoring athletic, social and cultural events or offering free samples or branded merchandise. The judge also upheld a requirement that warning labels cover half the packaging on each tobacco product. The judge threw out a ban on color and graphics on most tobacco advertising.

A ruling from the appeals court is not expected for several months.

The law, which took effect in June 2009, lets the FDA limit, but not ban, nicotine. It also lets the agency ban candy flavorings and marketing claims such “low tar” and “light,” require warnings be emblazoned over carton images, regulate what goes into tobacco products and publicize those ingredients.

The most recent part of the law to be finalized authorized the FDA to place graphic warning labels about the health impact of smoking. The labels include up-close photos of a smoker’s rotting teeth, a man exhaling smoke from a tracheotomy hole in his neck and the damaged heart muscle of a smoker.

Judge Eric Clay questioned the use of the graphic photos instead of a simpler warning label.

“Instead of those disgusting pictures … why wouldn’t the government come up with a more narrowly tailored solution?” Judge Clay asked Mr. Stern, who responded that past required warnings have been simple, but other countries have had success with images similar to the ones being put into place.

Mr. Francisco said the law gives the FDA the right to reject marketing and advertising schemes from the tobacco companies before they are seen by the public. Not only is that law illegally restrictive, he said, but people already know the danger of smoking, making the warnings of little use.

The plaintiffs are R.J. Reynolds Tobacco Co., Lorillard Inc., National Tobacco Co., Discount Tobacco City & Lottery Inc., and Commonwealth Brands.