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RJR v. FDA 

The question before the Court is whether Plaintiffs have met their burden of showing the need for the “extraordinary remedy” of a preliminary injunction against enforcement of the MRTP provision. Tennessee Scrap Recyclers Ass’n v. Bredesen, 556 F.3d 442, 447 (6th Cir. 2009). In determining whether to issue a preliminary injunction, courts consider four factors: (a) whether the movant has a strong likelihood of success on the merits; (b) whether the movant would suffer irreparable injury without the injunction; (c) whether issuance of the injunction would cause substantial harm to others; and (d) whether the public interest would be served by the issuance of the injunction. . . .

Assuming that the MRTP provision implicates the First Amendment, it seems likely that its restrictions on speech are constitutionally permissible. . . .

In sum, the Court concludes that Plaintiffs have little likelihood of success on the merits of their facial First Amendment challenge to the MRTP provision except on the theory that it operates as a prior restraint on speech and lacks a reasonable time limit for FDA review. . . .

Having considered each of the required factors, the Court finds that the “extraordinary remedy” of a preliminary injunction is unwarranted.

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III. CONCLUSION

For the foregoing reasons, Plaintiffs’ motion is DENIED.

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Firms fighting cig tax  

A Mississippi cigarette distribution company and a Kentucky manufacturer want to nix a state law that taxes their cigarettes sold out of state.

In a complaint filed in Hinds County Chancery Court against the State Tax Commission, The Corr-Williams Co. and Commonwealth Brands Inc. said the 1 1/4-cent-per-cigarette fee on smokes sold out of state violates the U.S. Constitution by unfairly taxing interstate commerce.

The companies are not challenging taxes collected on cigarettes sold in state.

The tax in question - which equates to about 20 cents a pack - went into affect in July and applies to manufacturers not included in the state's 1997 tobacco settlement.

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• Miss. tobacco tax called unconstitutional 

A Mississippi company that sells tobacco products wants the state to stop collecting taxes on cigarettes sold at retail outlets outside the state.

In a lawsuit filed Friday in Hinds County Chancery Court, the Corr-Williams Co. said a 2009 amendment to the state's tobacco tax policy that applies a $.0125-fee to cigarettes that pass through warehouses in the state violates the U.S. Constitution by applying an unfair burden on cigarettes sold through interstate commerce.

The lawsuit does not challenge the portion of the law that applies taxes to products sold in Mississippi.

Based in Pearl, the Corr-Williams company has warehouses in Columbia and Natchez.

Commonwealth Brands Inc., a Bowling Green, Ky.-based cigarette manufacturer that distributes its tobacco products through Mississippi, joined Corr-Williams in the lawsuit.

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Six tobacco companies suing FDA in BG court  

A local business is among the nation’s largest tobacco companies that filed a lawsuit Monday in Bowling Green, claiming restrictions in a new federal law violate their freedom of speech.

Bowling Green-based Commonwealth Brands and five other companies claim the Family Smoking Prevention and Tobacco Control Act prohibits tobacco companies from giving truthful information to adult customers, according to the lawsuit filed in U.S. District Court.

“It affects us like any other company,” said Robert Wilkey, senior legal counsel for Commonwealth Brands, “and we believe it inappropriately interferes with our ability to communicate to adult consumers.” . . .

The lawsuit was filed in Bowling Green because of its close proximity to some of the companies, Wilkey said.

Along with Commonwealth Brands, plaintiff National Tobacco Company is based in Louisville, Conwood Company has a manufacturing facility in Bowling Green and Discount Tobacco City & Lottery is based in Murray and has stores throughout western Kentucky.

Other tobacco companies in the suit are R.J. Reynolds and Lorillard Tobacco, North Carolina-based companies which are the second and third largest tobacco manufacturers in the United States. Commonwealth Brands, owned by Imperial Tobacco Group in Britain, is the fourth largest U.S. tobacco manufacturer. . . .

“My expectation is that this lawsuit will be ultimately unsuccessful,” said Ed Sweda, a lawyer for the Tobacco Products Liability Project in Boston, pointing to previous laws limiting cigarette advertising and marketing that have been in place for more than 40 years.

Floyd Abrams, a lawyer representing Lorillard in the case, said he was confident the suit would be successful.

“Some of these regulations go so far in the direction of stifling the entirely lawful speech of Lorillard to its customers that it violates the First Amendment,” he said.

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Big Tobacco Asserts First Amendment with Help from Floyd Abrams 

The tobacco companies are represented by English, Lucas, Priest & Owsley in Bowling Green. Additionally, Latham & Watkins represents Commonwealth Brands, Jones Day represents Conwood Company and R.J. Reynolds Tobacco Company, and Cahill Gordon & Reindel represents Lorillard Tobacco Co.

Indeed, The Am Law Daily couldn't help but notice that Cahill's First Amendment stalwart Floyd Abrams made the media rounds yesterday on Lorillard's behalf. Abrams told the Journal the case "will be about whether Congress has gone too far about preventing tobacco companies from communicating with adults, and keeping adults from receiving the information that tobacco companies want to send to them."

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SULLUM: New Tobacco Advertising Limits Challenged in Federal Court  

In June I predicted that the advertising restrictions imposed by the law that authorizes the FDA to regulate tobacco products will be overturned on First Amendment grounds. Yesterday R.J. Reynolds and several other tobacco companies filed a federal lawsuit that challenges the new rules, which include bans on tobacco-brand sponsorship of sporting or entertainment events, on outdoor advertising within 1,000 feet of a school or playground, and on the use of color or pictures in outdoor ads, indoor ads (except those in adult-only businesses), and print ads carried by publications with significant underage readerships. The suit also challenges the new, larger warning labels (which will cover the top half of the front and back on each package), arguing that they will leave too little space for manufacturers' speech, and the prohibition against discussing the relative risks of different tobacco products without the FDA's permission.

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• Tobacco Companies Sue to Loosen New Limits 

Most of the nation's largest tobacco companies filed a free-speech lawsuit on Monday in Kentucky to try to stop a landmark federal law from curtailing their marketing or forcing them to print graphic warnings on the top half of cigarette packages next year.

The first lawsuit against the new law, which was signed in June by President Obama, is likely to end up before the United States Supreme Court, lawyers on all sides of the issue said on Monday. In 2001, the Supreme Court rejected outdoor advertising restrictions in tobacco regulations in Massachusetts, ruling 6-3 that it violated free speech rights.

"The case is likely to proceed quickly," Floyd Abrams, a constitutional lawyer who is representing the Lorillard Tobacco Company, said in a phone interview on Monday. "Tobacco is a legal product for adults, and the Supreme Court has said that the industry has an interest which the First Amendment protects to communicate information about its products, and adults have the right to receive that information."

Anti-tobacco lawyers said the federal legislation was carefully worded to withstand just such a legal test.

"It was perfectly clear there was going to be a constitutional challenge, and I think it will survive the challenge," Richard A. Daynard, a professor at the Northeastern School of Law in Boston and chairman of its Tobacco Products Liability Project, said in a phone interview. . . .

Clifford E. Douglas, a lawyer and executive director of the University of Michigan Tobacco Research Network, countered, "If there's any commercial speech that it is constitutional to restrict, it's the type of marketing covered in this legislation." . . .

David M. Sylvia, a spokesman for Altria, said on Monday that the company has its own free-speech concerns about some parts of the law, "but at this point in time we're not commenting on our strategy about how we're handling that." He said Altria had not yet reviewed the lawsuit.

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Commonwealth Brands, Inc. Issues Legal Challenge to FDA 

Commonwealth Brands, Inc. has today joined with a number of other companies including the R.J.Reynolds Tobacco Company, Lorillard, Inc. and Conwood Company in filing an action in Federal Court against the U.S. Food and Drug Administration regarding the recently enacted Family Smoking Prevention and Tobacco Control Act. This action is designed to protect the plaintiffs' First Amendment right to free speech.

Commonwealth Brands believes that the legislation, as passed on 22 June 2009, imposes unprecedented and impermissible restrictions on its commercial free speech rights as guaranteed by the U S Constitution. If allowed, the Act will virtually eliminate the few remaining avenues that the Company has to communicate with its adult consumers.

Commonwealth Brands also believes that the Act directly violates its Constitutional rights by suppressing its lawful ability to participate in the scientific and political debate surrounding its products and unduly restricts its right to engage in commercial speech.

Jonathan Cox, CEO and President of Commonwealth Brands, Inc. said:

"Commonwealth Brands supports the Act's aim of preventing youth access to tobacco products and actively participates in youth access prevention initiatives.

"However, the Act fails to respect the legitimacy of our commercial freedoms and our right to communicate with our adult smokers. We believe that many of the provisions within the Act violate our constitutional rights and are not reasonably related to the goal of reducing youth access to tobacco products.

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Tobacco Giants Challenge Law 

Reynolds American Inc., Lorillard Inc. and several other tobacco companies filed a lawsuit Monday seeking to block various provisions of a new federal tobacco law on the grounds that the provisions violate the companies' First Amendment rights.

The tobacco companies said the recently enacted law, which placed the industry under the oversight of the Food and Drug Administration, sharply restricts the companies' right to advertise their products to adult tobacco users.

The companies object to such provisions as a requirement that cigarette makers expand the size of warning labels so that they cover the top half of the front and back of cigarette packs, and include graphic images such as diseased lungs. This change, they say, would leave manufacturers with only a small and often-obscured portion of a cigarette pack to print their own messages.

The companies also challenged a rule that restricts their ability to publicize the relative health risks of certain products such as smokeless tobacco.

The suit was filed against the FDA in a federal district court in Bowling Green, Ky., the home of one of the plaintiffs, Commonwealth Brands Inc. An FDA spokeswoman said the agency doesn't comment on lawsuits. . . .

The advertising industry is watching the issue closely to see how any court ruling could impact not only the tobacco industry, but other industries as well. This case "is extremely significant," said Dan Jaffe, executive vice president of the advertising lobby.

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Commonwealth Brands, Inc. Says FDA Regulation Represents a Lost Opportunity 

"It is a great disappointment that this Congress, which claimed to be so different and supposedly heralded a new era for the United States has seen fit to enact legislation that is over a decade old."

A spokesperson for Commonwealth Brands, Inc., the manufacturer of USA Gold cigarettes, stated that, "the enactment of this law represents a golden opportunity lost. Congress has passed up a unique chance to develop a regulatory framework for the tobacco industry that could have been effective, efficient and proportionate. Instead, this law will only serve to threaten the survival of small manufacturers, and punish their law abiding, hard working consumers. At the same time it will reward big tobacco companies, whose practices were the genesis for this legislation. In short, the additional cost of complying with this law will hurt the very people that the government claimed to be helping."

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Exclusive Davidoff Slims Cigarettes Launch Party Marked a Night of LUXURY 

To mark the official U.S. launch of Davidoff Slims cigarettes, Commonwealth Brands, Inc. (an Imperial Tobacco Group company and the fourth largest tobacco company in the U.S.) held an exclusive Davidoff Slims VIP Cocktail Party on March 19th at PURE Nightclub at Caesars Palace Las Vegas. Members of the tobacco industry were invited to experience first-hand the superb smoking experience of Davidoff Slims, and to celebrate the continuing successful momentum of the international brand which takes the U.S. tobacco industry and social scene to a new level of sophistication and luxury. . . .

"Commonwealth Brands is thrilled to include Davidoff Slims in the company's winning portfolio of tobacco products," said Mancuso. "The industry welcomes the only ultra-premium slims brand backed by decades of rich heritage that competition can never match up to. This new shape of luxury will forever change the slims category, and we are proud to personally introduce them to our valuable customers and prospects."

"The launch party for Davidoff Slims cigarettes was truly a unique event," said Kathleen Gallagher of Smoker Friendly. "There was a feeling of excitement throughout the entire evening and the size of the crowd was wonderful- everything was first-class."

Understanding the consumer's desire for an alternative premium slims cigarette, Commonwealth Brands introduced Davidoff Slims to the U.S. in February 2009.

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Commonwealth Brands Thinks Tobacco Tax is an Outrage 

Commonwealth Brands, Inc., the Nation's fourth largest tobacco manufacturer, with manufacturing facilities in Reidsville, North Carolina, speaks out against Governor Bev Perdue's push for an increase in the state excise tax on tobacco products. Within the Governor's plan, she has announced support for a $1 per pack increase, which has been followed by members of North Carolina's state legislature proposing Bills for increases to take effect by July 1, 2009.

Commonwealth Brands, Inc. which has already been proactive against the proposed smoking ban in North Carolina, has expressed its concerns with the SET increase by writing to Governor Purdue, and to Representative Weiss, who has most recently introduced a Bill to raise the tax by .75 cents per pack. Commonwealth Brands, Inc. employs over 200 people in Reidsville, NC and is concerned for their North Carolina consumers. In an interview Anthony Hemsley, Vice President of Government and Corporate Affairs, said, "It is a disgrace to continually target legitimate, adult smokers who choose to purchase a legal product." He continued with, "It is disappointing that states, especially one like North Carolina which has benefited from tobacco for so many years, continue to persecute our smokers to cover state deficits."

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• Commonwealth Brands Supports Smokers' Rights  

Commonwealth Brands, Inc. the fourth largest tobacco manufacturer in the United States has expressed its concern over Missouri's newly proposed statewide smoking ban. Commonwealth believes that smoking bans "infringe upon the freedoms and rights of our smokers." Missouri's existing legislation, which leaves the option of whether to ban smoking or not to the patrons and management of public premises is a perfectly workable and fair solution.

In the Bill proposed by Senator Bray, smoking will be prohibited in public buildings and vehicles, bars, restaurants, and within 15 feet of any entrance to a public place or meeting. There are no exemptions envisaged for any business.

Not only could a wholesale smoking ban be very costly for the state of Missouri but Commonwealth Brands, Inc. stated that, "Where bans have been enacted, the leisure and hospitality industries have witnessed a decline in employment of between 4-16%," and in the case of Missouri the effect could be even more pronounced given the current difficult economic times.

A spokesperson for Commonwealth Brands, Inc. stated that, "Above all else, our consumers, who are legally entitled to purchase and consume our products, disagree with your proposal, which is why we oppose this bill."

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Commonwealth Brands Urges Beshear to Stop the Tax 

ommonwealth Brands, Inc. the 4th largest tobacco manufacturer in the U.S. wrote to Governor Steve Beshear a second time, after receiving no response to the first, stating its strong objection to the proposed 70 cents- per-pack increase on state excise tax for cigarettes. Commonwealth Brands, Inc. strongly urges Governor Beshear to reconsider his support for this regressive proposed tax increase, as it can be very damaging to the Kentucky economy.

Commonwealth's VP of Corporate and Government Affairs pointed out that "a commitment to fund education, healthcare, or seeking to overcome a State deficit... from additional taxation levied on a consumer product with sales already in decline does not amount to good policy." Between 2002 and 2006 there has been 49 separate occasions where States have increased tobacco excise and a revenue shortfall has been generated equaling over $1 billion.

Apart from penalizing honest consumers, Commonwealth Brands stressed that, higher state excise levels "over and above the proposed increase in the Federal Excise Tax through SCHIP could prove disastrous.

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Imperial Tobacco joins Master Settlement accord 

Imperial Tobacco Group PLC said yesterday that it has joined the Master Settlement Agreement, an accord between cigarette-makers that restricts advertising and is a prerequisite to selling tobacco in the United States.

Imperial said it would start selling its brands, such as Davidoff, in the United States within weeks.

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