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But, "that doesn't mean they're going to win." Kaelan Hollon, a spokeswoman for Reynolds American, the tobacco company that led the 2011 suit, says they are "carefully reviewing the FDA's latest proposal for graphic warnings." "We firmly support public awareness of the harms of smoking cigarettes," she says, "but the manner in which those messages are delivered to the public cannot run afoul of the First Amendment protections that apply to all speakers, including cigarette manufacturers."

Privately, one lawyer for the company explained why in a letter later recovered in a court filing: "We have never raised any objection to the use of our labels feeling, for your more or less private information, that it is not too bad an advertisement." The FTC called the packaging mimicry "an indirect form of advertising aimed at children." As the Truth Initiative's Koval explained, the tobacco industry had more than a passing interest in getting kids interested in its products