Tobacco.org

• 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.

Jump to full article »