February 26, 2011 / 12:28 AM / 9 years ago

CORRECTED - Lorillard, Reynolds sue FDA over menthol cigarettes

(Corrects brand name in paragraph 13 and adds brand name to paragraph 5)

* Companies cite bias among FDA advisory panel members

* Health advocates say lawsuit is frivolous

* FDA panel’s report due March 23 (Rewrites with details from suit, adds reaction, byline)

By Susan Heavey

WASHINGTON, Feb 25 (Reuters) - Two tobacco companies went to court against U.S. health regulators on Friday, seeking to block consideration of an imminent advisory panel report that could recommend a ban on menthol-flavored cigarettes.

Lorillard Inc LO.N and Reynolds American Inc’s RAI.N R.J. Reynolds Tobacco Co unit filed a lawsuit against the Food and Drug Administration charging there were “conflicts of interest and bias among members” of the FDA advisory panel.

The advisers have been weighing the health impact of mint-flavored cigarettes and are expected to deliver their final report on March 23.

Mentholated cigarettes make up roughly 30 percent of U.S. annual cigarette sales of more than $83 billion, according to Euromonitor International.

The top-selling menthol cigarette is Lorillard’s Newport brand. R.J. Reynolds sells the Kool brand and a menthol version of its Camel product.

A 2009 law gave the FDA regulatory power over tobacco products and specifically banned chocolate, fruit and other flavorings that lawmakers said enticed children to start smoking.

The legislation called on the FDA to seek advice from a panel of outside experts before determining whether menthol cigarettes should also be taken off the U.S. market.

The lawsuit filed in U.S. District Court for the District of Columbia accuses three tobacco advisory panel members of having “severe financial and appearance conflicts of interest and associated biases.”

The suit says these advisers have received funding for research or consultation work from drugmakers that make smoking-cessation products.

Two others on a panel subcommittee also have biases, according to the suit, because they have served as paid expert witnesses in lawsuits against tobacco companies.

Health advocates denounced the lawsuit as a frivolous attempt to keep the FDA panel’s recommendation from coming to light.

“They fear that the committee, having examined the evidence, will recommend effective actions that reduce or eliminate the lucrative market for menthol cigarettes, said Matthew Myers president of the Campaign for Tobacco-Free Kids. “Once again, they are putting profits ahead of lives and health.”

Altria Group Inc’s (MO.N) Philip Morris unit, which is not part of the lawsuit, also sells a menthol version of its Marlboro cigarette.

All three companies have spoken out against any menthol ban since the FDA’s panel began holding meetings last year. The advisers are scheduled to meet on March 2 and March 17 ahead of issuing its report.

As with other advisory panels, the FDA is not bound to follow its recommendations. The law did not set a deadline for any action on menthol.

FDA spokesman Jeff Ventura said: “As a matter of general policy, the FDA does not comment on possible, pending or ongoing litigation.” (Reporting by Susan Heavey; Editing by Carol Bishopric and Tim Dobbyn)

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