Tobacco.org

The Reynolds, Lorillard Lawsuit and The Wellstone Monopoly Act of 2009 

Wellstone Filters Sciences, Inc., (OTC Bulletin Board: WFLR) the leading reduced-risk cigarette filter technology company lauds a recent lawsuit filed by Reynolds American and Lorillard challenging new FDA legislation in Federal Court. The lawsuit challenges various provisions of a recent bill that radically expands the FDA's authority to regulate cigarettes and cigarette substitutes, including alternative technologies such as Reduced Exposure Products. The Reynolds suit alleges that the radical expansion of warning requirements in the bill runs afoul of the First Amendment. Other critics refer to the legislation colloquially as the "Marlboro Monopoly Act of 2009" because of Philip Morris' close collaboration in the drafting of the bill and the expansive authority it vests in the FDA to further limit cigarette advertising and thereby insulate Philip Morris' market share from any new competition.

The suit does not challenge broader provisions of the bill that empower the FDA to review and approve "modified risk" products such as Reduced Exposure Products prior to their release and distribution to the consuming public.

Wellstone Filter Sciences, Inc. will be largely unaffected by the outcome of the suit because it is not a cigarette manufacturer. Wellstone's CEO L. J. Hand stated, "We are exclusively a filter technology company, dedicated to research, discovery and development of methods and compounds that remove a wide range of toxins and carcinogens without compromising taste." . . .

Mr. Hand continued, "Litigation inevitably triggers media attention and the more time policy pundits and analysts spend leafing through this bill, the more quickly they will realize that the FDA is effectively mandating the technology we have been developing for years." Moreover, Mr. Hand states, "The government has created a custom built niche for our product. Philip Morris may have bankrolled the overhaul, but this legislation has our name written all over it."

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Lorillard to Participate in Barclays Capital Back-To-School Consumer Conference 

Lorillard Inc., (NYSE: LO) today announced that Martin L. Orlowsky, Chairman, President and Chief Executive Officer, and David H. Taylor, Chief Financial Officer, will participate in the Barclays Capital Back-To-School Consumer Conference on Thursday, September 10, 2009 at 3:00 P.M. Eastern.

The presentation will be broadcast live over the Internet under the Investor Relations part of Lorillard's website at www.lorillard.com.

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EDITORIAL: Protecting their right to lie? Huh?  

As a sponsor of the annual Relay for Life, and as a defender of the First Amendment, we can only express shock and disgust that the makers of a product responsible for millions of cancer deaths feel their free speech rights are being violated.

But that's what two of the nation's three largest tobacco companies and several smaller ones are claiming in a lawsuit against a new law regulating cigarette marketing.

R.J. Reynolds Tobacco Co. and Lorillard Inc. are claiming that new federal regulations will somehow lead to fewer sales to their already hooked customers. . . .

Here's the amusing part - if one can exist in a discussion of a product that causes 400,000 deaths a year - the law also allegedly limits tobacco companies from "making truthful statements about their products in scientific, public policy and political debates."

For decades, tobacco companies have had the freedom of speech to make truthful statements, but chose instead to lie to the American public. Millions have perished as a result. . . .

No requirement exists in the First Amendment to tell the truth, so the tobacco companies may have some legal grounds when they contend that their free speech rights are being robbed.

But we wonder what the millions of cancer victims would say if they still had the freedom of speech that was robbed from them.

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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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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." . . .

Attorneys at English, Lucas, Priest & Owsley law office in Bowling Green are representing the tobacco companies along with attorneys from Washington, D.C., New York and Pittsburgh, according to the lawsuit. . . .

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.

"There are very few methods that we have left to communicate to adult consumers about our products," Wilkey said. Like other manufacturers, "we're out there competing for the attention of the consumer."

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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, et. al. v. FDA (PDF) 

COMMONWEALTH BRANDS, INC.; CONWOOD COMPANY, LLC; DISCOUNT TOBACCO CITY & LOTTERY, INC.; LORILLARD TOBACCO COMPANY; NATIONAL TOBACCO COMPANY, L.P.;and R.J. REYNOLDS TOBACCO COMPANY,

v.

UNITED STATES OF AMERICA; UNITED STATES FOOD AND DRUG ADMINISTRATION; MARGARET HAMBURG, Commissioner of the United States Food and Drug Administration; and KATHLEEN SEBELIUS, Secretary of the United States Department of Health* and Human Services, . . .

WHEREFORE, Plaintiffs pray that this Court:

(A) enter a judgment declaring the Act’s speech restrictions, both individually and collectively, to be an unconstitutional abridgement of Plaintiffs’ free speech rights under the First Amendment to the United States Constitution;

(B) enter a judgment declaring that the Act’s warning label and black-and-white text provisions, individually and collectively, effect an unconstitutional taking in violation of the Fifth Amendment to the United States Constitution;

(C) enter a judgment declaring that the Modified Risk Tobacco Products provision violates Plaintiffs’ due process rights under the Fifth Amendment to the United States Constitution;

(D) enter a judgment declaring that the provision allowing modification by the Secretary of the outdoor advertising ban violates Plaintiffs’ due process rights under the Fifth Amendment to the United States Constitution;

(E) enter a judgment declaring that the Act’s restrictions herein challenged collectively effect an unconstitutional taking in violation of the Fifth Amendment to the United States Constitution;

(F) enter a judgment declaring that the Act’s provisions allowing the enactment of additional or more stringent laws is an unconstitutional infringement of Plaintiffs’ free speech

rights and an unconstitutional delegation of legislative power to entities outside the Legislative Branch;

(G) enter, after hearing, a preliminary injunction, pending final resolution of this action, enjoining Defendants from taking any action to enforce the Act;

(H) enter a permanent injunction enjoining Defendants from enforcing the Act’s restrictions herein challenged; and

(I) grant Plaintiffs such additional or different relief as it deems just and proper, including an award of reasonable attorneys’ fees and the costs of this action. 6. In short, while each of these provisions individually violates the Constitution, collectively, the Act’s provisions cut off nearly every currently-available avenue of tobacco advertising and marketing. In so doing, they run afoul of Plaintiffs’ rights to free speech and due process, and effectuate an unconstitutional taking of private property, in violation of the First and Fifth Amendments by, among other things, chilling Plaintiffs’ right to participate in scientific and political debates surrounding their products, unduly restricting Plaintiffs’ right to engage in commercial speech, and confiscating Plaintiffs’ packaging, advertising, and intellectual property for an anti-tobacco message drafted by the Government. Plaintiffs therefore respectfully request that this Court declare the challenged provisions of the Act in violation of the First and/or Fifth Amendments to the United States Constitution and enjoin the Government from enforcing these unconstitutional provisions.

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RJR, Other Tobacco Companies Go to Court to Evade Regulation by FDA 

Today's announcement by R.J. Reynolds Tobacco Company, Lorillard Inc. and other tobacco manufacturers that they have filed suit to overturn portions of the recently passed FDA tobacco legislation is not unexpected. The lawsuit, filed in the federal court in Bowling Green, Kentucky, seeks to overturn portions the Family Smoking Prevention and Tobacco Control Act which deal with advertising, marketing and labeling of tobacco products.

The tobacco companies have challenged language in the bill that would compel them to scientifically justify claims of "reduced risk" for any tobacco product. They are also challenging the requirement for larger graphic warning labels on cigarette packs, as well as restrictions on colorful advertising which impacts children, advertising within 1000 feet of playgrounds or schools and numerous other marketing and advertising restrictions. In challenging these restrictions in the FDA tobacco legislation, R.J. Reynolds and the others are asking a federal court to allow them to continue to employ the same irresponsible and deadly marketing techniques which have addicted generations of American children and caused an epidemic of disease, death and heartbreak for American families.

The Family Smoking Prevention and Tobacco Control Act, signed into law on June 22, 2009 by President Obama, is carefully crafted and consistent with the First Amendment. The advertising and marketing restrictions in the bill, first introduced in 1996 as the FDA Tobacco Rule, have been reviewed and cleared by the U.S. Department of Justice.

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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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Cigarette Firms Sue Government Over Marketing Strictures  

The legal fight is likely to be waged all the way to the Supreme Court, as the companies seek to overturn a federal law banning the use of "color lettering, trademarks, logos, or any other imagery in most advertisements" among other things. The restrictions would also apply to displays in stores, direct-mail ads, and even hats and t-shirts.

Most galling to companies, as their complaint tells it, would be a government takeover of the top half of cigarette packs for anti-tobacco images and messages, leaving only the bottom for the companies "to communicate with adult consumers." Even that message would likely be obscured in stores, the companies say. . . .

Blogger Mark Senek at Eye on FDA predicts legal failure for the companies because cigarettes are nothing more than a delivery system for the nicotine, a drug regulated by the FDA.

Senek, a PR man, concludes, "the whole thing smacks of corporate hubris for which the public has little stomach, especially right now."

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Big tobacco lights a fire under US law 

MOST of America's largest tobacco companies have filed a free-speech lawsuit in Kentucky to try to stop a landmark federal law from curtailing their marketing or forcing them to print graphic warnings on cigarette packets.

The first lawsuit against the new law, which was signed in June by President Barack Obama, is likely to end up before the US Supreme Court, lawyers on all sides of the issue said.

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. ''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 law was carefully worded to withstand just such a legal test. . . .

As for the choice of Kentucky, anti-tobacco's Mr Daynard said the motion for injunction would probably go to the most sympathetic circuit court. ''They want this stuff stopped in its tracks so they can keep pitching cigarettes to kids,'' he said, ''and their chance of doing that in Kentucky is better than, say, New York.''

Kentucky leads the nation in smoking, according to a 2008 report.

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Major cigarette makers sue over new tobacco law 

Two of the three largest U.S. tobacco companies filed suit Monday to block marketing restrictions in a law that gives the U.S. Food and Drug Administration authority over tobacco, claiming the provisions violate their right to free speech.

R.J. Reynolds Tobacco Co., maker of Camel cigarettes, and Lorillard Inc., which sells the Newport menthol brand, filed the federal lawsuit with several other tobacco companies.

It is the first major challenge of the Legislation passed and enacted in June, and a lawyer for tobacco consumers doubted the lawsuit will be successful.

The tobacco makers claim provisions of the law "severely restrict the few remaining channels we have to communicate with adult tobacco consumers," Martin L. Holton III, senior vice president and general counsel for Reynolds, said in a statement.

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• UPDATE 3-Reynolds,others sue to stop parts of US tobacco law  

A group including some top U.S. tobacco companies filed a federal lawsuit on Monday to block provisions of a new tobacco law, arguing it violated their free speech rights under the U.S. constitution.

R.J. Reynolds Tobacco Co, a unit of Reynolds American Inc (RAI.N) that makes Camel and Winston cigarettes, and Lorillard Inc (LO.N), which sells the Newport menthol brand, were among those seeking to void parts of the law.

Altria Group Inc (MO.N), which makes Marlboro cigarettes and is the largest U.S. tobacco company, is not involved in the case after breaking with rivals to support the law. . . .

While not challenging the FDA's authority to regulate tobacco products, tobacco companies say the law goes too far in limiting their commercial speech rights in light of existing bans on television and radio advertisements.

"Even prior to the act, plaintiffs had few avenues of communication for speaking to their adult consumers," the companies said in the lawsuit filed in a federal court in Kentucky. "The act imposes sweeping and unprecedented restrictions that effectively foreclose those avenues of communication that remain." . . .

"The tobacco companies have a very legitimate claim based on the Supreme Court's own rulings," Michael Siegel, professor of community health sciences at Boston University's School of Public Health.

"I question why the crafters of the legislation did not deal with the First Amendment issue appropriately," he added. "A ruling for the companies would negate a good portion of this legislation."

Edward Sweda, chief attorney for the Tobacco Products Liability Project at Northeastern University School of Law in Boston, said the tobacco companies already agreed to some advertising restrictions as part of a landmark legal settlement with U.S. states in 1998.

The companies are asking the court to overturn bans on the warning labels, using color and graphics in labels and advertising, some outdoor advertising and sponsorships of sporting and other events.

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Laurence Tisch 

Laurence Alan Tisch (born March 5, 1923, died November 15, 2003) was a Jewish American businessman, Wall Street investor and self-made billionaire. He was the CEO of CBS television network from 1986 to 1995. With his brother Bob Tisch, he was part owner of the Loews Corporation.

Tisch was widely criticized for his mismanagement of the CBS network and his involvement in the Brown and Williamson scandal (later portrayed in the film The Insider). Many journalistic veterans at CBS News, including Walter Cronkite, accused Tisch of degrading journalistic standards in pursuit of higher profits. Critics have pointed out that Tisch's efforts to prevent the Brown and Williamson story from appearing on 60 Minutes were likely driven by the financial windfall he stood to receive from the company's 1995 sale to Westinghouse Electric Corporation (and his unwillingness to jeopardize the sale, which ultimately netted him $2 billion), as well as the fact that Tisch's Loews Corporation owned a major tobacco company, Lorillard Tobacco.

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