The biggest U.S. tobacco companies on Wednesday resurrected a federal lawsuit against the Food and Drug Administration challenging the agency’s effort to assert authority over tobacco product packaging.
Subsidiaries of Altria Group Inc., Reynolds American Inc. and Imperial Tobacco PLC dropped a similar suit in June after the FDA said it would review a policy it introduced earlier this year that would require companies secure federal approval for tobacco products if they made changes to packaging, such as altering background colors or modifying a logo. But the companies found the FDA’s revised policy, released on Sept. 8, imposed similar restrictions.
The latest suit, which was filed in Washington, D.C., argues the FDA requirements violate First Amendment protections of commercial free speech. The cigarette makers claim the 2009 Tobacco Control Act, which gave the FDA authority to regulate tobacco, restricts the FDA from preapproving labels of cigarette brands such as Marlboro, Camel and Newport. As a result, the manufacturers said, they should be able to change the color or look of tobacco packaging as they wish.
An FDA spokesman declined to comment on the pending litigation.
In a filing to the U.S. District Court in Washington, D.C., the tobacco companies say they revived the suit because the FDA “did not materially change the requirements imposed” in its new policy for cigarette approvals. “The Agency merely added some new arguments to attempt to justify them,” the suit says.
The suit calls on the court to rule that the FDA policy is unlawful. The companies aren’t challenging the required health warning labels on cigarettes.