September 1, 2009 2:26 PM

Big Tobacco Asserts First Amendment with Help from Floyd Abrams

Posted by Ross Todd

On Monday, some of the country's largest tobacco companies filed suit to stop the federal government from forcing them to cut back on marketing and to double the size of warning labels on cigarette packaging, according to stories in The Wall Street Journal  and The New York Times. 

The complaint, filed in federal court in Bowling Green, Ky., is in response to federal legislation signed by President Barack Obama in June that places the tobacco industry under the oversight of the Food and Drug Administration. The complaint claims the new law would ban color ads in People, Sports Illustrated, and ESPN Magazine, even though those magazines appeal mostly to adults.

The tobacco companies argue the new law restricts their First Amendment right to advertise their products to adult tobacco users. The regulations, set to take effect next year, will force cigarette makers to cover the top half of the front and back of cigarette packs with warning labels.

The tobacco companies are represented by English, Lucas, Priest & Owsley in Bowling Green. Additionally, Latham & Watkins represents Commonwealth Brands, Jones Day represents Conwood Company and R.J. Reynolds Tobacco Company, and Cahill Gordon & Reindel represents Lorillard Tobacco Co.

Indeed, The Am Law Daily couldn't help but notice that Cahill's First Amendment stalwart Floyd Abrams made the media rounds yesterday on Lorillard's behalf. Abrams told the Journal the case "will be about whether Congress has gone too far about preventing tobacco companies from communicating with adults, and keeping adults from receiving the information that tobacco companies want to send to them." 

He told the NYT he expects the case to proceed quickly.

“Tobacco is a legal product for adults, and the Supreme Court has said that the industry has an interest which the First Amendment protects to communicate information about its products, and adults have the right to receive that information,” Abrams told the NYT. “When you cut back [companies'] ability to speak to their potential lawful purchasers, you do start running into serious legal issues.”

An FDA spokeswoman told the Journal that the agency does not comment on lawsuits.

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