In arguments aimed at getting a Greensboro, N.C., federal judge to toss out the rules, the advertising and tobacco industries, along with the National Association of Convenience Stores, contended FDA didn't have the authority to act on tobacco and that the FDA set ad restrictions far from the "narrowly tailored" permissible rules.
"Considered individually or in combination, FDA's advertising rules plainly are `more extensive than necessary' to serve the government's asserted goal of reducing underage tobacco use," says one of the briefs in the case.
FDA rules would sharply limit tobacco advertising in magazines, outdoor boards and point-of-purchase materials. Tobacco brand sponsorship of most events would also be banned, as would giveaways of merchandise.
While the suits-from cigarette marketers, smokeless tobacco companies, advertising groups and convenience stores-were filed separately, all filed some joint arguments. One argument by cigarette companies and the convenience stores says the FDA's attempts to regulate cigarettes as "nicotine delivery devices" is a contortion that is an attempt to "fit a square peg into a round hole."
FIRST AMENDMENT ISSUES
In the advertising and freedom of speech challenge, the ad groups suggest there are other ways to regulate tobacco that could affect underage smoking without getting into First Amendment issues. Given them, the advertising restrictions imposed are neither warranted nor constitutional, it argues.
The ad groups argue that even if a court determines some specific restrictions might be allowable, the FDA's go well beyond them.
The brief argues FDA rules on which magazines can get tobacco ads with images are unsupportable and outdoor board restrictions limiting signs to 1,000 feet away from a school or park would almost ban them in many cities.
The FDA, which will now file its response in court, said last week that the arguments were no surprise.