New Tobacco Restrictions & New Troubles

The new Tobacco Control Act violates the Tobacco Companies freedom of speech and property rights by forcing them to stigmatize disgrace their own products and ignoring their right to communicate with smokers.

The Family Smoking Prevention and Tobacco Control Act, signed into law by President Obama in late June, prevents tobacco companies from "using any speech through the use of color inscriptions, logos, or any other imagery in most advertisements, including actually all point of sale and direct mail advertisements."

Government guaranteed cautions have appeared on cigarette packages for more than four decades and on smokeless tobacco for more than two decades, but the companies said that the new restrictions violate the First and Fifth Amendments.

In its accusation in Bowling Green, Ky., Federal Court, Reynolds explained that the federal government and the FDA are trying to remove all ties between the companies and their customers by prescribing exactly how and how much marketing Big Tobacco is permitted.

The companies said that they are obliged to stigmatize their own products because the Act demands that the top half of the front and back of all cigarette packs display a "Government drew anti-tobacco message, including shocking, color graphic images."

These changes would leave a company with just a small part of the bottom half of its package to communicate with customers. The companies said that they also are forbidden from "making honest statements about their products in scientific, public policy, and political disputes."

The new anti-tobacco act is aimed to lower tobacco use by young people. The companies said that their customers’ base consists of people who already smoke or use tobacco so they should be able to reach them in a free marketplace to intensify their brand loyalty or try to get them to switch.

The tobacco makers name the FDA, the government and individual officials as respondents in the lawsuit, which seeks to put portions of the law on hold while the case is heard. Ultimately, they want the marketing provisions stripped from the law.

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