The NYT reports that provisions of the new tobacco legislation likely to be signed by President Obama this week is certain to face a First Amendment challenge in federal court. While bill sponsor Rep. Henry Waxman claims it was “carefully drafted” to survive court scrutiny, the legislation contains provisions virtually identical to some struck down by the Supreme Court in Lorillard v. Reilly in 2001. Other provisions that purport to limit tobacco companies ability to inform consumers about the nature and existence of FDA regulation could also be problematic.
One interesting question touched on in the story is who will challenge the law. Philip Morris, the nation’s largest cigarette manufacturer, supported the bill. But other tobacco companies, such as R.J. Reynolds, and advertising firms are potential plaintiffs. Civil liberties groups like the ACLU oppose some of the advertising restrictions, but might have difficulty demonstrating standing to mount a legal challenge.