By TIM THORNBERRY
Kentucky Correspondent

WINSTON-SALEM, N.C. — As the U.S. Food and Drug Administration (FDA) rolls on with its enforcement of the Family Smoking Prevention and Tobacco Control Act (FSPTCA), the tobacco industry is gearing up to comply with the regulations – or fight what it believes to be unfair and unconstitutional.

A handful of tobacco manufacturers and a tobacco retailer have filed suit in federal district court in Bowling Green, Ky., “to protect their First Amendment right to communicate with adult tobacco consumers about their products,” according to information from R.J. Reynolds, one of the suit participants and second largest tobacco company in the country.

“This suit does not challenge Congress’ decision to give the FDA regulatory authority over tobacco products, nor does it challenge the vast majority of the provisions of the new law,” said Martin L. Holton III, senior vice president and general counsel for R.J. Reynolds. “However, the law contains provisions that severely restrict the few remaining channels we have to communicate with adult tobacco consumers and, in our opinion, cannot be justified on any basis consistent with the demands of the First Amendment.”

Holton also said, “The law also contains provisions that chill our ability to participate in the broader public policy dialogue over the future of tobacco products in this country. Reynolds believes that governments, public health officials, tobacco manufacturers and others can and should play a role in providing adult tobacco consumers with accurate information about the various health risks and comparative risks associated with the use of different tobacco and nicotine products. This suit seeks to confirm that Reynolds’ ability to participate in that important dialogue has not been shut down.”

David Howard, spokesman for Reynolds, said the company fully intends to comply and work closely with the FDA’s Center for Tobacco Products. But through the legal action, the company hopes to ultimately eliminate conditions contained in the law it feels will inhibit their ability to communicate with their adult customers.
“When the law was passed, there were certain provisions that took effect immediately, such as, we can not include advertisements for cigarettes with advertisements for other products regulated by the FDA in direct mail pieces. Also, the way we could interpret it, we are not allowed to communicate the varying risk of different tobacco products and risks continual and harm reduction, we cannot speak about that,” Howard said.

“In the coming months, by June 22, 2010 – that’s when you’ll have the mandated warnings on packs – no colors on the packaging and various other advertising and marketing restrictions will take effect. Some of those do pertain to our lawsuit and we are hoping either a preliminary injunction or a stay will be granted so those provisions cannot be enforced until the matter is resolved.”

Howard added that FDA regulation is a reality and the company intends to cooperate to the fullest extent to move through the process.

“As provisions move forward and the regulation continues to take shape, we look forward to working closely with the FDA and with the Tobacco Center to ensure there are good lines of communication and importantly, we look forward to developing a relationship to get guidance on an ongoing basis,” he said. “We are hoping the agency will provide timely, clear guidance as we move forward and more provisions take affect.”

Regarding the recent banning of flavored cigarettes, he said he doesn’t believe any that R.J. Reynolds currently manufactures has a characterizing flavor that would be banned by this provision.
Howard noted the company has been preparing for the implementation of the new law for some time.

“We began putting things in motion many months ago just in case FDA regulation was to take affect and sure enough, it did happen,” he said. “We were already in a good position to address any matters that we needed to and to keep our business moving forward in a positive direction and as efficiently and effectively as possible.”

Just what will happen from a grower’s standpoint remains to be seen, but Howard said Reynolds has been proactive with its contract growers to keep them informed of how all this could affect them.
“We’ve worked very hard to help educate them and make them aware of what this means to them and help make any transitions that they might need to make as seamless as possible,” he said. “Really, it has been an educational process.

“We will certainly provide information for them and keep them up to date on things but also, they should not hesitate to reach out to the FDA’s Center for Tobacco Products if they ever have any questions, because those folks are now the authorities in terms of this regulation. They are the ones overseeing it and anyone who has questions they can reach out to them, and they (FDA) should be at the ready and more than willing to provide any and all assistance that growers would be looking for and would need.”

Other companies involved in the legal action include Conwood Co., LLC. (R.J. Reynolds and Conwood are operating companies of Reynolds American, Inc.), Commonwealth Brands, Inc., Lorillard, Inc., National Tobacco Co., L.P. and Discount Tobacco City & Lottery, Inc.

Published on Sept. 30, 2009