Judge Denies Tobacco Companies’ Preliminary Injunction

On Thursday, November 5, 2009, U.S. District Judge Joseph H. McKinley Jr. denied a preliminary injunction sought by a group of tobacco companies as part of a lawsuit they brought in August arguing new federal tobacco regulations violate their right to free speech. As Michael Felberbaum reports for the Associated Press, the ruling last Thursday does seem to indicate the companies have little chance of prevailing in their suit.

The companies in question are challenging the provisions of a new law that gave the Food and Drug Administration (FDA) new regulatory authority over tobacco. The law, which passed in June, is called the Family Smoking Prevention and Tobacco Control Act. In his decision, Judge McKinley saw no reason to block the provision while the lawsuit is ongoing.

The tobacco companies were naturally disappointed in the ruling, while the FDA spokeswoman Kathleen Quinn states in the AP article that the FDA is “pleased that the court ‘denied this attempt to keep FDA from enforcing crucial public health legislation.’” According to Floyd Abrams, an attorney representing Lorillard (maker of Newport brand cigarettes), Judge McKinley must ultimately determine if each regulation being challenged by the companies violates free speech. The lawsuit does not challenge the FDA’s authority to regulate tobacco.

The law will take full effect over three years. Under the statute the companies are barred from using “light” and “low tar” in their labeling. Additionally, companies can no longer make candy flavored products and they must include new graphic warnings over cartoon images. The companies argue this law “prohibits them from using ‘color lettering, trademarks, logos or any other imagery in most advertisements, including virtually all point-of-sale and direct-mail advertisements.’” The companies also complain the law prevents them from ‘“making truthful statements about their products in scientific, public policy and political debates.”’

The FDA maintains the new marketing regulations do not restrict free speech, and, in fact they serve the health interests of the public.

To read the Felberbaum article click here.

Posted: 11/09/09