Request denied to halt enforcement on new tobacco rules

A federal judge has turned down a request by the nation’s No. 2 cigarette-maker and others to immediately halt enforcement of new federal regulations on tobacco products.

Their challenge to new U.S. Food and Drug Administration powers to regulate what tobacco firms say about their products has little likelihood of success, except on one point, Judge Joseph H. McKinley Jr. of the U.S. District Court in Bowling Green, Ky., ruled yesterday.

Because of that, and because the businesses couldn’t show they faced irreparable harm, McKinley rejected tobacco companies’ request for a preliminary injunction stopping FDA enforcement of rules limiting what they say about products they believe reduce the risk of using tobacco.

“The agency is pleased that the court denied this attempt to keep FDA from enforcing crucial public health legislation,” spokeswoman Kathleen K. Quinn said.

The ruling doesn’t bar the tobacco companies from continuing to argue their case as the regulations take effect, however.

R.J. Reynolds Tobacco, the second-largest manufacturer of cigarettes, was disappointed in the judge’s ruling and is considering its options, spokesman David Howard said.

No. 3 Lorillard Tobacco remains committed to the suit, even though it didn’t join in the request for an injunction, spokesman Michael W. Robinson said.

“The overly broad provisions contained in the new law infringe on our right as a responsible company to communicate truthful messages about a legal product to adult consumers,” he said.

The companies are challenging FDA powers to regulate what they say about “reduced-risk” tobacco products. So far, no companies are claiming they have products that reduce the risk of using tobacco.

But the companies argued that the FDA powers are so sweeping that they would affect almost any communication about their products.

They said the provision in this year’s law giving the FDA those powers was “a viewpoint-based restriction on core First Amendment” rights.

The FDA argued that its powers were meant to let it assess any claims of reduced risk.

The judge said the FDA’s arguments were supported by Supreme Court and appeals court rulings upholding regulators’ power to limit what companies can claim about their products.

He ruled that the agency demonstrated that the dangers to the public it cited were real, noting the tobacco industry’s history of suppressing information about the risks of smoking.

McKinley said the tobacco companies might have a better case with their argument that the law did not provide a reasonable limit on the time the FDA could take to review company statements about tobacco products.

Henrico County-based Altria Group Inc., parent of the biggest U.S. cigarette-maker, Philip Morris USA, and the biggest smokeless firm, US Smokeless Tobacco, did not join the suit. Unlike the other cigarette-makers, Altria supported FDA regulation.

Spokesman William Phelps declined to comment on yesterday’s ruling.
Contact David Ress at (804) 649-6051 or dress @timesdispatch.com.


By David Ress
November 6, 2009 Timesdispatch

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