Big Tobacco Strikes Back

It didn’t take long for tobacco companies to try to evade tough new restrictions on their ability to market to young people. Less than three months after a landmark federal law granted the Food and Drug Administration power to regulate tobacco products, several of the industry’s biggest companies filed suit in tobacco-friendly Kentucky. They contend that the law’s marketing provisions infringe their commercial free-speech rights.
For the sake of the public’s health, we hope this suit is the last gasp of an industry that has a long, sorry history of pretending to market only to adults while surreptitiously targeting young people.
The industry is not trying to upend the entire law or the government’s right to regulate cigarette contents. Rather, it seeks to block restrictions that would greatly limit how and where it can advertise.
The law, for example, bans the use of color or graphic images in advertisements placed in magazines that reach a significant number of people under the age of 18 even though the primary audience might be adults. Ads in those magazines would have to consist of black text on a white background. The lawsuit contends that People magazine, Sports Illustrated and ESPN the Magazine, all read predominantly by adults, would be limited to black-and-white tobacco ads.
Under another provision, cigarette packages would have to carry much larger warnings than the current labels and would have to use color graphics to depict the health consequences of smoking.
The law also prohibits advertising that products carry a lower risk than traditional cigarettes without F.D.A. approval, a provision aimed at ensuring that such claims are scientifically valid not only for individual smokers but also for the population as a whole, including nonsmokers who might be enticed to smoke if they thought a cigarette was low-risk.
The industry contends that these and other restrictions limit its ability to convey “truthful information” about a lawful product to adult consumers, not just to young people. Antismoking advocates retort that the companies can convey their information in black and white without using colorful images that have a strong emotional resonance with young people.
To uphold the law, the courts would have to decide that all of these provisions are “narrowly tailored” to the goal of reducing youth smoking, one of the tests of constitutionality. In 2001 the Supreme Court overturned rules in Massachusetts prohibiting outdoor advertising of tobacco products within 1,000 feet of schools and playgrounds because, while aimed at protecting children, the restrictions interfered unduly with messages aimed at adults.
The new law revises provisions on outdoor advertising to meet the objections raised in that case. They would not prohibit ads in retail store windows near schools and playgrounds, for example, so that adult passers-by would know tobacco products were on sale inside.
And just in case more changes are thought necessary, the law instructs the F.D.A. to modify its rules before issuing them to comply with the Massachusetts decision and other governing First Amendment cases.
On public health grounds, the tobacco industry does not deserve much latitude to promote its deadly products with colorful images, as opposed to black-and-white text. In a 2006 opinion based on company documents, Federal District Judge Gladys Kessler found that tobacco companies had marketed to young people “while consistently, publicly, and falsely, denying they do so.”
Now, the courts must decide how much this rogue industry may be restrained. The health of millions of impressionable young people rides on the outcome.

Man pleads guilty to smuggling cigarettes abroad

MIAMI — Authorities say an American has pleaded guilty to smuggling more than 27 million cigarettes from the U.S. into some European Union countries.

Authorities in Miami say 57-year-old Roman Vidal pleaded guilty Friday to conspiring to commit wire and mail fraud. They say he was trying to avoid paying more than $6.5 million in customs and tax duties.

They say he arranged to buy cases of cigarettes from Panama along with other cargo such as yarn and wood flooring to cover them up. Authorities say he directed the preparation of documents that declared only the cover materials, not the cigarettes.

Sentencing is set for Nov. 10.

Vidal's attorney didn't immediately return a telephone message and an e-mail.

Smokeless "E-cigarette" Makers and FDA in Court Today

CHICAGO - One state has already banned e-cigarettes, the battery-powered tobacco-free smoking tubes. This week, two distributors of the products challenge the U.S. Food and Drug Administration in federal court for confiscating product shipments from China; the FDA says they are dangerous.

The tube looks like a paper-and-tobacco cigarette and produces vapors of nicotine and flavors that can be inhaled without the traditional cigarette smoke. Those who uses the devices call it "vaping." Oregon has banned the sale of the so-called electronic cigarettes, as have Canada and Mexico. Some makers of e-cigarettes say "vaping" is safer than smoking. Kathy Drea, vice president of advocacy for the American Lung Association Upper Midwest says that's debatable.

"The FDA has found carcinogens and toxic chemicals in the vapor that the person inhales and in the vapor that's released from the e-cigarette."

Drea says that those findings were from a small sample only, and because e-cigarettes are so new, no one really knows the long-term health effects. She says the American Lung Association is concerned about how fast these e-cigarettes hit the market.

"These cigarette manufacturers have sold these nicotine delivery devices without any FDA review or approval."

Drea says the results of preliminary tests don't look good.

"The FDA has done some studies on the e-cigarettes, and they have found that they contain carcinogens and toxic chemicals, including ingredients found in antifreeze."

The antifreeze ingredient is diethyline glycol.

The federal district court will be asked to decide whether e-cigarettes should be classified as tobacco or as nicotine products. If they are classified as nicotine, then the FDA says they should be treated just like any smoking cessation aid and should be subject to federal regulation and testing. The manufacturers want the court to classify e-cigarettes as tobacco products, to be more loosely regulated. The Electronic Cigarette Association, which represents the distributors, claims e-cigarettes deliver a harmless mixture of nicotine and water vapor.

The Upper Midwest District includes Illinois, Iowa, Indiana, Wisconsin, Minnesota and North and South Dakota.

Cigarette display ban will boost illegal sales

GOVERNMENT plans to ban cigarette displays in shops will boost black market tobacco sales, shopkeepers say.
In December last year the Government announced plans to force shop owners to store all tobacco products under the counter.
The Government believe it will curb teenage smoking.
But tobacconists, including Kirklees councillor Mohammed Sarwar, believe it will ruin their trade and encourage smokers to buy counterfeit and illegally imported cigarettes.
A study from of 26,000 UK shopkeepers by the Tobacco Retailers Alliance found 81% of convenience shop owners in Yorkshire believed the illegal tobacco business would benefit from a law which prohibits tobacco displays in shops.
Clr Sarwar, who owns Fair Price, Newsome Road, said: “People think the prices for legal tobacco are high and they can get imported cigarettes for less. Already shopkeepers are struggling.
“Yesterday 80% of my sales were cigarettes. When display units are stopped I think there will be a big loss.
“I think it will increase black market cigarette sales and create more problems for shopkeepers.
“Also if you have to bend down to get the cigarettes someone could hit you over the head and steal from the till.”

Man 'scammed $1.1m in cigarettes'

A MAN set up a fake shop front so he could steal more than $1 million in cigarettes from tobacco suppliers in just three weeks, a court has been told.
Son Thanh Nguyen, 50, of Durack, ran the scam from his leased shop at Capalaba between July and August 1999, the Brisbane District Court was told today.
Prosecutor Chris Minnery said Mr Nguyen ordered cigarettes from three suppliers - Australian Independent Wholesalers, Rothmans and Trio Brothers Pty Ltd - and then paid with valueless cheques upon delivery.
When the tobacco suppliers visited the shop to demand payment they found it empty.
The court was told Mr Nguyen had fled the country for Vietnam, where he was born and lived before coming to Australia in 1981 as a refugee.
Mr Minnery said none of the stock has been recovered, with suppliers suffering a total loss of more than $1.1 million.
The court was told Mr Nguyen eventually returned to Australia and was located by police in Inala in 2004.
He was charged with 17 counts of aggravated fraud to which he pleaded guilty today.
He was sentenced to six years' jail and will be eligible for parole after serving two years behind bars.