Mike Scarcella is a Washington, D.C.-based reporter for The National Law Journal, an American Lawyer affiliate.
A federal judge in Washington has ordered major tobacco companies to broadly publish statements that acknowledge deliberate deception about the adverse health effects of smoking.
The judge, Gladys Kessler of U.S. District Court for the District of Columbia, on November 27 rejected claims from lawyers for the companies that portions of the so-called “corrective statements” violated First Amendment rights. The statements, the judge said, “pass constitutional muster.”
In a 55-page ruling, Kessler published the final wording of the statements, which were first ordered as a remedy in 2006 when the judge found tobacco companies liable, after a nine-month bench trial, for years of false statements about the risks of smoking.
The judge’s ruling in 2006 required the tobacco companies to widely issue statements addressing topics that included the adverse health effects of smoking and the manipulation of cigarette design to ensure optimum nicotine delivery. The U.S. Justice Department and attorneys for the tobacco companies each filed proposed corrective statements. Kessler said she evaluated the submissions before settling on the final language.
“[M]andatory disclosures alerting the consumer to wrongdoing and giving accurate information about that wrongdoing have been upheld. They are neither unprecedented nor controversial,” Kessler said.
The statements include: “More people die every year from smoking than from murder, AIDS, suicide, drugs, car crashes, and alcohol, combined.” And this: “When you smoke, the nicotine actually changes the brain—that’s why quitting is so hard.”
Jones Day partner Noel Francisco, who argued for R.J. Reynolds Tobacco Holdings, Inc. at a hearing in October, wasn’t immediately reached for comment. Counsel for Phillip Morris USA included Beth Wilkinson of Paul, Weiss, Rifkind, Wharton & Garrison and Miguel Estrada of Gibson, Dunn & Crutcher.
“[W]hile the government may claim that at least some of its proposed statements do not literally compel defendants to utter the words, ‘We lied,’ there can be no question that the proposed statements are subject to that interpretation,” Estrada said in court papers filed in September.
The lawyers for the tobacco companies objected, in part, to the preamble that accompanies the statements, describing the words as not “purely factual.”
One of the preambles says: “A Federal Court has ruled that the Defendant tobacco companies deliberately deceived the American public about the addictiveness of smoking and nicotine, and has ordered those companies to make this statement. Here is the truth.”
Kessler said that the corrective statements are each based on specific findings of fact. The judge said the “defendants fail to raise any substantive argument against the content of the preamble, which does nothing more than state that a federal court ruled that defendant tobacco companies deceived the public.” Kessler also said the statements don’t attempt to “shock” the reader or cause embarrassment.
The judge initially ordered the tobacco companies to publish the statements on corporate websites, network television and in major newspapers as full-page advertisements. But, in the six years since the judge’s ruling, “the types of media in which defendants convey commercial messages of this nature have changed dramatically.”
Kessler ordered the government and lawyers for the tobacco companies to begin discussing the public dissemination of the corrective statements. The judge said she expects the talks to conclude by March “even though the holiday season is upon us.”