FDA Litigation Begins

The first lawsuit challenging the limited authority of the FDA to regulate tobacco advertising was filed in U.S. District Court in Kentucky today. Their complaint is that restrictions on advertising are an infringement of First Amendment rights.

This intriguing distinction in the U.S. that places advertisements under speech doctrines rather than trade is fairly recent. In 1980 the court established the Central Hudson test for “commercial speech” that disallows First Amendment protection only if the advertisement is false or misleading or the government has a substantial, reasonable, interest in regulation. But it wasn’t until 2001 that Lorrilard vs. Reilly struck down Massachusetts restrictions on tobacco advertising saying the state did not prove that these restrictions would reduce underage smoking.

Today’s suit claims,that marketing aspects of the law, "severely restrict the few remaining channels we have to communicate with adult tobacco consumers."

My concern is not that tobacco companies will be allowed to communicate with adult tobacco consumers but that reinforcing the “adults only” cachet will enhance longstanding marketing strategies for attracting youth. The tobacco companies can’t lose.

The success or failure of this litigation will no doubt take years. In fact, this aspect of the new law is not scheduled to take effect for three years anyway. But already we are learning of the troubling nature of institutionalizing contemporary tobacco use under the auspices of the Food and Drug Administration. Note that Philip Morris, a leading collaborator on the bill, is letting the competitors initiate this litigation.