Judge Orders Tobacco Companies To Advertise Risks Of Smoking

Judge Orders Tobacco Companies To Advertise Risks Of Smoking

WASHINGTON, D.C. - (Mealey's) A District of Columbia federal judge on Nov. 27 released the language tobacco companies will be required to include in corrective statements in newspaper and television advertisements, on their websites and in cigarette packaging to counteract what the judge found to be decades of deceptive advertising about the health risks of tobacco (U.S.A. v. Philip Morris USA Inc., et al., No. 1:99-cv-2496, D. D.C.).

(Opinion available. Document #04-121212-002Z. Order available. Document #04-121212-003Z.)

 

U.S. Judge Gladys Kessler of the District Court for the District of Columbia ordered the companies to use specific language, including that:

  • "Smoking kills, on average, 1200 Americans. Everyday.
  • "Cigarette companies intentionally designed cigarettes with enough nicotine to create and sustain addiction.
  • "'Low tar' and filtered cigarette smokers inhale essentially the same amount of tar and nicotine as they would from regular cigarettes.
  • "When you smoke, the nicotine actually changes the brain - that's why quitting is so hard.
  • "Children exposed to secondhand smoke are at an increased risk for sudden infant death syndrome (SIDS), acute respiratory infections, ear problems, severe asthma, and reduced lung function."

The examples represent the five areas in which Judge Kessler found that the defendants engaged in a racketeering conspiracy to mislead the public - tobacco toxicity, addictiveness, companies' manipulation of nicotine content to enhance addictiveness, "safer" cigarettes and the risks of secondhand smoke. The defendants include Philip Morris USA Inc. and parent Altria Group; R.J. Reynolds Tobacco Co.; Lorillard Tobacco LLC; and British American Tobacco.

Meet And Confer

Judge Kessler said that in light of changes in the advertising world since her 2006 decision finding the companies liable and ordering corrective statements, the parties should further meet and confer regarding the media mix in which the statements should appear, as well as such details as size, color and font style for the statements.

Judge Kessler brushed aside the companies' due process claims that a preamble she ordered was "confessional" and "exclusively punitive," saying it was only informative.

"This Court's authority to order corrective statements as a remedy for past deception was affirmed by the Court of Appeals," she said. "This Court has heeded its mandate to fashion Corrective Statements that are purely factual and uncontroversial and are directed at preventing and restraining the Defendants from deceiving the American public in the future."

The decision stems from a lawsuit by federal prosecutors in 1999 alleging that the companies' conspiracy to mislead the public violated civil racketeering laws.

9-Month Trial

Following a nine-month bench trial in 2006, Judge Kessler found in favor of the U.S. government that the tobacco industry violated the Racketeer Influenced and Corrupt Organizations Act by concealing the health risks of cigarette smoking and the addictiveness of nicotine through decades of conduct designed to deceive the American public. Among other things, the judge enjoined the defendants from using health descriptors such as "low tar" and "light" or any other words that could imply that smoking such cigarettes may be less injurious than smoking other brands.

The defendants appealed to the District of Columbia Circuit U.S. Court of Appeals, which affirmed the majority of Judge Kessler's liability findings and most of the remedial order, including the corrective statements and the injunctions against the commission of "any act of racketeering, as defined in 18 U.S. Code Section 1961(1), relating in any way to the manufacturing, marketing, promotion, health consequences or sale of cigarettes in the United States."

Shortly after that remand, the 2009 tobacco act was signed into law, whereupon the companies moved to vacate Judge Kessler's injunctions.

Earlier this year, Judge Kessler decided not to postpone an order for corrective action against the industry until the newer cases challenging marketing restrictions and proposed graphic cigarette warning labels can be decided.

Counsel

The government is represented by Sarang Vijay Damle, Deputy Assistant Attorney General Michael F. Hertz, Mark B. Stern, Alisa B. Klein and Assistant U.S. Attorney R. Craig Lawrence of the U.S. Department of Justice in Washington.

Philip Morris USA and Altria are represented by Miguel A. Estrada of Gibson, Dunn & Crutcher in Washington, Beth A. Wilkinson of Paul, Weiss, Rifkind, Wharton & Garrison in Washington and Thomas J. Frederick of Winston & Strawn in Chicago. R.J. Reynolds is represented by Robert F. McDermott Jr. and Peter J. Biersteker of Jones Day in Washington. Lorillard is represented by Michael B. Minton of Thompson Coburn in St. Louis.

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