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Appeals Court Set To Hear Challenge To Tobacco Law

Federal appeals court is set to hear arguments over a law giving Food and Drug Administration power to regulate tobacco advertising and marketing.

CINCINNATI (AP) -- A federal appeals court is set to hear arguments over a law giving the Food and Drug Administration the power to regulate tobacco advertising and marketing.

The three-judge panel from the U.S. 6th Circuit Court of Appeals on Wednesday will hear a challenge from tobacco companies who say the Family Smoking Prevention and Tobacco Control Act illegally restricts their free speech rights.

In January 2010, U.S. District Judge Joseph H. McKinley Jr. in Bowling Green, Ky., rejected much of the first major challenge to the law brought by tobacco companies. McKinley upheld most of the marketing restrictions in the law, including a ban on tobacco companies sponsoring athletic, social and cultural events or offering free samples or branded merchandise. The judge also upheld a requirement that warning labels cover half the packaging on each tobacco product.

The judge threw out a ban on color and graphics on most tobacco advertising.

The act, signed into law in June 2009, 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.

Joining R.J. Reynolds Tobacco Co., maker of Camel cigarettes, and Lorillard Inc., which sells Newport menthols, were National Tobacco Co., Discount Tobacco City & Lottery Inc., and Kentucky-based Commonwealth Brands, which is owned by Britain's Imperial Tobacco Group PLC.

Kenly Ames, an attorney for the tobacco companies, wrote in a brief that the law doesn't serve any purpose other than to make it difficult for companies to sell cigarettes.

"In other words, the so-called warnings, in substance and effect, convey no more than (the) generalized anti-tobacco message: 'don't buy this product'," Ames wrote.

Alisa B. Klein with the U.S. Department of Justice wrote in a brief that wide-ranging restrictions were needed because of how tobacco companies have behaved in the past when trying to find new consumers for their products.

"Tobacco imagery thus seeks to distract potential users from the fact that tobacco products are lethal and addictive, and to suggest that tobacco is a harmless indulgence akin to designer clothing and perfume," Klein wrote.

The case drew briefs from a variety of interested parties, including the National Association of Attorneys General, National Association of Convenience Stores and American Advertising Federation.

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.

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