Federal judge strikes down rules in new tobacco law barring color and graphics in ads

Judge says color, graphics OK in tobacco ads

RICHMOND, Va. — A judge has overturned two of the marketing restrictions in the new federal tobacco law, including a ban on color and graphics in most tobacco advertising.

Several tobacco makers sued in August to block the restrictions, and U.S. District Judge Joseph H. McKinley Jr. in Kentucky agreed that two violated tobacco companies’ free speech rights.

Congress could have exempted certain types of colors and images instead of banning all color and graphics in advertising that children might see, McKinley ruled. He also said the U.S. Food and Drug Administration can’t bar everyone from saying the agency’s regulation of tobacco makes it safe, but he left open the possibility that the FDA could bar tobacco companies from making that assertion.

McKinley upheld most of the new marketing restrictions, including a ban on tobacco companies sponsoring athletic, social and cultural events or offering free samples or branded merchandise. The ruling, recorded Tuesday, also upholds a requirement that warning labels cover half the packaging on each tobacco product.

The Family Smoking Prevention and Tobacco Control Act, signed into law in June, lets the FDA limit but not ban nicotine. It also lets the agency ban candy flavorings and marketing claims such “low tar” and “light,” require warnings be emblazoned over carton images, regulate what goes into tobacco products and publicize those ingredients.

The lawsuit by R.J. Reynolds Tobacco Co., maker of Camel cigarettes; Lorillard Inc., which sells Newport menthols, and other tobacco companies was the first major challenge of the legislation.

“We’re certainly pleased with the judge’s decision in finding that certain provisions of the law are unconstitutional,” said R.J. Reynolds spokesman David Howard, adding that the company is reviewing the decision and considering it options to appeal the parts of the law that the judge upheld.

Michael W. Robinson, a spokesman for Lorillard, said: “We are gratified that the court upheld our free speech rights to use color and graphics in our advertising to communicate with our adult consumers.”

FDA spokeswoman Kathleen Quinn said the agency is pleased the ruling largely allows it to continue implementing the law.

“It is an important victory,” said former FDA Commissioner David Kessler, who championed the anti-tobacco public health movement. “There are still pieces of the puzzle that need to be appealed, but we’ve come a very long way from 15 years ago when this battle first began.”

Joining in the suit filed in U.S. District Court in Bowling Green, Ky., were: National Tobacco Co., Discount Tobacco City & Lottery Inc., and Kentucky-based Commonwealth Brands, which is owned by Britain’s Imperial Tobacco Group PLC.

Richmond, Va.-based Altria Group Inc., parent company of the nation’s largest tobacco maker, Philip Morris USA, supported the law, saying the company backs tough but fair regulation.

No. 2 Reynolds American, owner of R.J. Reynolds Tobacco Co., and No. 3 Lorillard, both based in North Carolina, said the law would lock in Altria’s share market leadership by limiting future marketing. Altria’s brands include Marlboro, which held a 41.9 percent share of the U.S. cigarette market in the third quarter, according to Information Resources Inc.