Five of the nation's largest cigarette manufacturers filed suit (PDF) Tuesday against the U.S. Food and Drug Administration challenging new regulations that require them to print graphic images depicting the health risks of smoking on cigarette packaging and advertisements.
First Amendment veteran Floyd Abrams of Cahill, Gordon & Reindel is representing the tobacco companies, which include R.J. Reynolds Tobacco Co., Lorillard Inc., Commonwealth Brands, Inc., Liggett Group LLC, and Santa Fe Natural Tobacco Company Inc.
"It violates the First Amendment to require the manufacturer of a lawful product to be required to use half of its package essentially to urge people not to buy the product," Abrams said in a phone interview this morning. "The issue is whether the government can do that and we think that the First Amendment bars anything like that sort of compelled speech."
A spokeswoman for the Food and Drug Administration said the agency does not comment on pending litigation.
In the complaint, filed in U.S. District Court for the District of Columbia, the companies note that they've never brought a legal challenge before against regulations requiring written warnings to be printed on cigarette packages and ads.
The difference between the traditional warnings and the new ones, they argue, is that the former represent "uncontroversial factual information," while the latter "cross the line into governmental anti-smoking advocacy."
Under the Family Smoking Prevention and Tobacco Control Act of 2009, the FDA created nine new written warnings that list a phone number for a quitting hotline and are accompanied by color pictures, including a side-by-side comparison of diseased and non-diseased lungs, a man with a hole in his throat and a body on an autopsy table.
The new regulations will go into effect in September 2012. In unveiling the new warnings in June, the agency said that the new warnings were needed to encourage adults to quit smoking and prevent children from starting. "These labels are frank, honest and powerful depictions of the health risks of smoking," Health and Human Services Secretary Kathleen Sebelius said in the statement.
The plaintiffs' legal team also includes attorneys from Jones Day, Latham & Watkins, Covington & Burling and O'Melveny & Myers. The case has been assigned to U.S. District Judge Richard Leon.