Well, it was probably inevitable. Some tobacco companies have filed a First Amendment based lawsuit aimed at the newly enacted legislation that gives FDA authority to regulate communications over tobacco marketing. Here is why they will lose.
First of all, cigarettes are a drug delivery system. That is it. They provide no nutritional value, and they are not curative. In fact, quite the opposite, as we all know, cigarette smoking is a leading cause of death in this country and has a LOT of health problems associated with its use, even in people who don't develop lung cancer.
Second, the FDA already has estabslished the legal authority to review the communications regarding the marketing of drugs through its Division of Drug Marketing, Advertising and Communications. Tobacco is a drug delivery system. End of story.
Fifth, the speech that the FDA will be regulating is aimed at keeping tobacco companies from sponsoring events, putting logos on T-shirts and the like, putting more warnings on the label (product labeling for a drug) and not allowing "lite" to be put onto packages. The companies will argue that these restrictions keep them from participating in the policy debates and in policy formation around tobacco use. No one will believe that. There is no prohibition on their providing information on their Web sites or to hire lobbyists to affect policy outcomes. The argument is folly at best.
Lastly, the whole thing smacks of corporate hubris for which the public has little stomach, especially right now. Smart companies would have taken the cue from Altria, who supported the legislation. The others are pretending they are living in the world of Mad Men.