Seventeen years after federal prosecutors sued the tobacco industry, a full decade after a court ruled that Big Tobacco’s biggest players had maintained an illegal racketeering enterprise in violation of the Racketeer Influenced and Corrupt Organization [RICO] Act, and nearly seven years since they lost their appeal in that case, these companies are still dragging their feet creating the public warning ads they were ordered to make many, many years ago. The judge who has had to preside over this drawn-out ordeal has had enough.
The so-called “corrective statements” were part of the remedial measures to the 2006 RICO ruling that followed a nine-month bench trial. The idea appeared to be simple: the defendant tobacco companies were ordered to pay for national TV, radio, and print ads warning people about the dangers of their products.
More precisely, these ads were to hit on five particular points:
1: The adverse health effects of smoking;
2: The addictiveness of smoking and nicotine;
3: The lack of any significant health benefit from smoking “low tar” or “light” cigarettes;
4: The manufacturers’ manipulation of cigarette design to ensure optimum nicotine delivery;
5: The dangers of exposure to secondhand smoke.
In 2009, the tobacco titans appealed, claiming that this requirement was a violation of their First Amendment rights. The appeals panel for the D.C. Circuit only vacated the requirement that this messaging also appear on retail displays.
The case then went back to District Court to figure out what the statements should say. After years of more back and forth and rewriting and revising, Judge Gladys Kessler finally settled on the wording of the messaging… which the cigarette companies appealed.
In the fifth appeal of the case, the defendants raised concerns about the preamble affixed to each of the five different, bullet-pointed messages.
“A Federal Court has ruled that Altria, R.J. Reynolds Tobacco, Lorillard, and Philip Morris USA deliberately deceived the American public…” reads the intro to each bullet-pointed list of facts.
The defendants claimed that forcing them to include this statement about their previous bad actions was outside the court’s authority under RICO and the First Amendment, and in 2015 the appeals panel agreed [PDF], telling the lower court that the statement needed to be forward-looking.
But rather than simply revise the few past-tense words in one sentence, the tobacco companies submitted a 40-page brief, in which they rewrote many of the statements that were not challenged in the previous appeal. Judge Kessler was… not pleased.
“That is ridiculous — a waste of precious time, energy, and money for all concerned — and a loss of information for the public,” writes Kessler [PDF]. “The Court has no intention of following that path, although it is obvious that Defendants are, once again, attempting to stall any final outcome to this long-standing litigation.”
In her order, Kessler notes that the revision offered by the government and its allied public health groups should suffice, as it simply shortens the disputed preamble to “A Federal Court has ordered Altria, R.J. Reynolds Tobacco, Lorillard, and Philip Morris USA to make this statement…”
“The newly crafted preambles do not in any way send a message to the public that Defendants
deceived them in the past,” explains the judge, “nor that Defendants are being punished for their previous conduct.”
But the tobacco companies had sought to have their names removed from the preamble, have “ordered” changed to “determined.”
However, the judge points out that, back in 2006, R.J. Reynolds and Lorillard actually requested that there be a mandatory attribution of this sort, while Philip Morris and Altria didn’t put up a fight. They can’t now — ten years after the fact — suddenly change their minds, explains Kessler.
The continued attempts by the tobacco companies to revise and rewrite the corrective statements gives them additional opportunities to appeal, which appears likely in this case.
A lawyer for one of the firms representing the public health groups involved in the case tells the National Law Journal [subscription req.] that everyone is onto the tobacco companies’ tactics.
“I think it’s safe to say that [Kessler] believes that the defendants are trying to delay the issuance of the corrective statements and that’s certainly the concern that my clients have had for many, many years,” he explains, “that the defendants have done and continue to do whatever they can to delay the day of reckoning.”