In a move that highlights the oddity of the current situation, tobacco marketers that seven weeks ago agreed to accept the FDA regulations and ad restrictions-in return for getting limits on their liability in health-related lawsuits- will ask the three-judge panel of the 4th U.S. Circuit Court of Appeals to overturn the FDA rules.
FAR FROM LAW
That does not mean the tobacco companies want to overturn the agreement; rather, they and those not involved in the settlement negotiations-the government, advertising groups and convenience-store owners-want to be in the best position if Congress doesn't approve the deal or if there are further actions on it.
"It's far from certain that the agreement will be enacted into law and, if not, what this court decides will be the key to whether the FDA has the authority-and the extent of that authority," said Matthew Myers, an attorney for the National Center for Tobacco Free-Kids who helped negotiate the liability deal.
"The outcome [of the court action] could directly influence the terms of any final settlement," Mr. Myers said.
"If this court decides the FDA has full authority to regulate tobacco and tobacco ads, maybe then Congress determines that the trade-offs in the agreement give too much to the tobacco industry.
"On the other hand, if this court were to decide that the FDA does not have authority to regulate, then it is possible the tobacco industry would think it had given up too much" in the settlement.
The appellate court is to hear challenges to a ruling by U.S. District Court Judge William Osteen, who earlier ruled the FDA had the right to regulate tobacco and nicotine, but not to regulate advertising.
The FDA ad rules strictly limit signage, point-of-purchase materials and the magazines that could take tobacco "imagery ads," and block giveaways of merchandise and sponsorships under brand names.
The judge temporarily set aside any new restrictions from taking effect pending the appeal. But his decision set the background for the now-concluded negotiations.
While the tobacco companies are trying to overturn the FDA's right to regulate, the government is trying to overturn the judge's decision that the FDA had no right to regulate advertising.
The case could be crucial, said John Fithian, attorney for the Freedom to Advertise Coalition.
"The tobacco settlement is nothing more than a proposal by outside parties for Congress to consider," he said. "Unless these advertising restrictions are incorporated into legislation, they have no force or effect."
"For the foreseeable future, it is the court case that determines how tobacco can be advertised," he noted.