Philip Morris, N. Carolina Ask Judge to Block Regulation of Tobacco

Philip Morris Cos. said Tuesday that it filed a motion for summary judgment in federal court against the Food and Drug Administration to prevent the agency from regulating the sale and advertising of cigarettes.

Also Tuesday, the state of North Carolina filed a brief supporting the tobacco industry’s suit. Other business groups have challenged the FDA rules, including the advertising industry, which alleges that the rules violate the 1st Amendment. A filing for summary judgment seeks a prompt ruling from a judge on controversies without sending the issues to a jury or having them resolved by a lengthy trial.

Philip Morris, which was joined by other major tobacco makers, filed the motion as part of its lawsuit filed in federal court in Greensboro, N.C.

On Aug. 23, President Clinton authorized the FDA to regulate the sale and marketing of cigarettes in an effort to curb smoking among children.

Philip Morris said its motion focuses on three issues it believes the court can decide without a detailed review.

It argued that Congress has never given the FDA the authority to regulate cigarettes or smokeless tobacco; that the Food, Drug and Cosmetic Act does not authorize the FDA to regulate those products as “drugs” or “medical devices”; and that the restrictions on advertising violate the 1st Amendment of the Constitution.

The regulations would ban billboards within 1,000 feet of schools and playgrounds, as well as vending machines, except in nightclubs and other places where minors are not allowed to enter. The rules would also end distribution of free samples of cigarettes, brand-name sponsorship of sporting or other events, and the placement of cigarette names on hats, T-shirts, gym bags and other products.

The regulations would also limit advertising in publications with young readerships to black-and-white text only.