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5 tobacco companies sue FDA over ad requirements

Big Tobacco says FDA’s advertising rule violates its constitutional rights

Five tobacco companies are suing the Federal Drug Administration (FDA), claiming the agency’s new regulation violates their First Amendment rights. Lorillard Inc., R.J. Reynolds Tobacco Co., Commonwealth Brands, Santa Fe Natural Tobacco and Liggett Group filed the suit yesterday in the U.S. District Court for the District of Columbia.

The FDA mandated in June that tobacco companies include graphic images on their cigarette packages persuading customers to quit smoking. One image is a stitched up dead man accompanied by the words “WARNING: Smoking can kill you.” Another is a photo of diseased lungs with a similar warning. See all the images.

"The notion that the government can require those who manufacture a lawful product to emblazon half of its package with pictures and words admittedly drafted to persuade the public not to purchase that product cannot withstand constitutional scrutiny,” said Floyd Abrams, a partner in the New York law firm Cahill Gordon & Reindel, in a statement. Abrams is representing Lorillard. “The government can engage in as much anti-smoking advocacy as it chooses in whatever language and with whatever pictures it chooses; it cannot force those who lawfully sell tobacco to the public to carry that message, those words, and those pictures."

An FDA spokeswoman said in a statement that the agency "does not comment on proposed, pending or ongoing litigation."

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Cathleen Flahardy

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