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Lawyers for a group of African-American smokers have asked a federal appeals court to reinstate their novel civil rights suit contending that the tobacco industry targeted black neighborhoods in selling more dangerous menthol cigarettes. “The memoranda and tobacco industry documents that became public in 1997 are quite remarkable,” William R. Adams Jr. told a three-judge panel of the 3rd U.S. Circuit Court of Appeals on Jan. 19 during oral arguments in Rev. Jesse Brown v. Philip Morris Inc., 99-1931. ‘A CONSPIRACY’ “What we have is concerted activity, an agreement to conduct a conspiracy to market more harmful mentholated products to African-Americans on the basis of race,” he told the judges. Adams of Philadelphia’s Black & Adams and co-counsel Bruce M. Ludwig of Sheller, Ludwig & Badey, also based in Philadelphia, urged the appeals panel to reverse a federal judge’s 1999 decision to dismiss the suit. “It was premature for the judge to rule without some sort of record, without some kind of evidentiary hearing,” added Ludwig, whose firm specializes in tobacco litigation. In September 1999, U.S. District Judge John R. Padova dismissed the suit, concluding, “Plaintiffs have not cited any authority holding that the type of ‘targeting’ alleged in this case violates Section 1981 or 1982. Plaintiffs have cited no case law, and the court can find no basis for creating a cause of action under these sections to fit this case.” While acknowledging that their theory is novel, Adams has argued that the original Civil Rights Acts of 1866 and 1870, enacted to prevent the victimization of former slaves during Reconstruction, included provisions protecting the rights of African-Americans in commerce. Jeffrey G. Weil, an attorney at Philadelphia’s Dechert representing Philip Morris Inc. and 11 other tobacco companies or industry groups, argued that the suit was properly dismissed by Padova. “This lawsuit stands the civil rights statutes on their heads,” Weil said. “These products were freely sold to communities of African-Americans, and here they’re complaining because the defendants spent too much time marketing to African-Americans.” The 1998 lawsuit contends that blacks are now 30 percent more likely to die of smoking-related illnesses than whites and that the reason is the tobacco industry’s 45-year-old campaign targeting black inner-city neighborhoods with billboard and retail advertising for more dangerous mentholated cigarettes. The lawsuit, filed on behalf of the Rev. Jesse Brown, a Philadelphia Lutheran pastor and leader of the National Association of African Americans for Positive Imagery, contends that menthol cigarettes are more dangerous than unmentholated brands because menthol creates additional toxic substances when burned. Federal government research has also suggested that menthol’s soothing effect makes it easier for people to smoke longer and inhale more deeply. African-Americans make up about 10 percent of the population, Adams argued, yet buy a third of menthol cigarettes. Among black smokers, he added, 75 percent smoke menthol. Adams also cited the case of “Uptown,” an R.J. Reynolds test-brand cigarette for black consumers that was aborted in 1990 after heavy public opposition by the Rev. Brown’s group. RACIAL ANIMUS OR MARKETING? “This was a cigarette with the highest nicotine content, the highest menthol content, the highest tar content and the highest-priced product on the market,” Adams told the judges. Weil, however, maintained that Adams’ examples were “just marketing. We also market certain types of music and certain types of clothing to certain segments of the population.” Weil argued that there was no evidence of racial animus by the tobacco industry, adding, “The plaintiffs are trying to federalize what is really a garden-variety tort claim.” The 3rd Circuit has been generally cool to anti-tobacco litigation, and some panel members were plainly skeptical. “I have a very basic question about how encouraging the sale or even the preference for a legal product is intentional discrimination on the grounds of race,” said U.S. Circuit Judge Maryanne Trump Barry. But Judge Milton I. Shadur, a senior U.S. district judge from Chicago sitting by designation, told Weil that he would like to know if there was any other explanation for the black consumer demand for menthol tobacco products. “It troubles me,” Shadur said. “Frankly, as a matter of chance you’re talking something like a probability of three in 10 million.”

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