Gladys Kessler. (Photo: Diego M. Radzinschi/NLJ.)
Eight years after a federal judge in Washington ordered tobacco companies to pay for an antismoking ad campaign, the judge on Monday approved a plan for executing that order.
Three of the largest tobacco manufacturers in the United States—Philip Morris USA Inc., R.J. Reynolds Tobacco Co. and Lorillard Tobacco Co.—will have to buy ads detailing the health risks of smoking from a fixed list of television networks and newspapers. U.S. District Judge Gladys Kessler rejected recent challenges from networks and advocates for newspapers and radio stations that were excluded from the list.
“This case was decided in 2006 and affirmed by our court of appeals in 2009. The public has still not received the benefit of any of the remedies ordered by this court,” Kessler wrote. “Publicizing the corrective statements is a major step forward in the effort to remedy many years of false and deceptive advertising by defendants.”
It could still be months or years before the public sees the ads, however. The parties are gearing up for a fight in the U.S. Court of Appeals for the D.C. Circuit over what the ads will say—a dispute that was put on hold while attorneys sorted out the logistics of the campaign.
The tobacco companies, U.S. Department of Justice and public health groups filed a proposed plan for the ad campaign in January after negotiating with a special master. Networks not on the list and groups representing newspapers and radio stations that serve African-American communities protested, arguing the ads wouldn’t reach key demographics—African-Americans, Hispanic-Americans and young people, especially— if they weren’t included.
Ad revenue is also at stake. The media companies didn’t specify in court papers how much they would earn if included on the list, but the television ads would run five times per week during prime time for one year. The tobacco companies would have to buy full-page, Sunday-edition newspaper ads over several weeks, as well as online ad space for those same papers.
After more negotiations, the parties submitted a revised plan in April that added more newspapers and gave the tobacco companies more flexibility to buy ad time on networks besides ABC, CBS and NBC, with the goal of reaching more African-American viewers.
Cable networks and other groups again filed objections, citing the same concerns about reaching key demographics. But Kessler ruled Monday that the revised plan proposed by the parties would accomplish the goal of reaching the highest number of African-Americans, Hispanic-Americans and young people.
The federal government initially sued the tobacco companies in 1999 for deceptive advertising. In 2006, Kessler found the companies liable and ordered the ad campaign. The D.C. Circuit ruled in 2009 the judge had the authority to order the “corrective statements.”
Representing Altria Group Inc., the parent company of Philip Morris, are Arnold & Porter; Gibson, Dunn & Crutcher; Paul, Weiss, Rifkind, Wharton & Garrison; and Winston & Strawn. Jones Day and Womble Carlyle Sandridge & Rice represent R.J. Reynolds. Thompson Coburn represents Lorillard.