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Tobacco company lawyers are challenging the proposed language of public statements that the U.S. Department of Justice wants cigarette manufacturers to distribute to minimize the chance that the companies will make false claims in the future about the health effects of smoking. The companies are required by court order to widely disseminate the so-called “corrective statements,” which address topics that include the marketing of cigarettes, addiction and health damage. The language of the statements, which must issue through ads in newspapers, on television networks and in retail displays, remains in dispute. U.S. District Judge Gladys Kessler will have the final say on the text of the statements. The statements are the most publicly visible component of the high-profile injunction issued against tobacco companies following a judge’s conclusion in 2006 that industry leaders participated in a decades-long campaign to dupe consumers about the health risks of smoking. The Justice Department sued the major companies in 1999 under federal racketeering laws. A lawyer for R.J. Reynolds Tobacco Holdings Inc., Noel Francisco of Jones Day, said during a hearing on October 15 that the statements must be “purely factual and uncontroversial.” Francisco argued that the government wants to appeal to consumers’ emotions, moving beyond factual statements to try to embarrass tobacco companies through what he described as “forced public confessions.” One of the proposed statements says that tobacco companies intentionally manipulated cigarettes to make them more addictive. Francisco took the lead in advocating for the tobacco companies during the hearing. Beth Wilkinson of Paul, Weiss, Rifkind, Wharton & Garrison and Gibson, Dunn & Crutcher’s Miguel Estrada were in court for Philip Morris USA. “[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. Justice Department lawyer Daniel Crane-Hirsch, who practices in consumer litigation, argued that the corrective statements must prevent and restrain any future fraudulent statements by the tobacco companies. Generic statements about the dangers of smoking that don’t go to corporate liability, he said, are insufficient. “These companies don’t want people to know what they have done,” Crane-Hirsch told Kessler. He later said the tobacco companies “want to erase history.” In court papers, Crane-Hirsch disputed that one of the proposed statements—”Smoking kills 1,200 Americans. Every day.”—is an improper appeal to emotion. He said the statement is rooted in an unchallenged finding of fact by Kessler, who presided over a nine-month bench trial in the racketeering case. The lawyers on both sides are also trying to assess the effect a recent decision by the U.S. Court of Appeals for the D.C. Circuit will have on the scope and substance of the corrective statements. A divided D.C. Circuit in August struck down a U.S. Food & Drug Administration rule requiring cigarette packages to carry graphic images depicting the hazards of smoking. Francisco said the decision provides a guideline for Kessler to restrict the corrective statements. The majority on the three-judge panel in the graphic images litigation determined that the images violated the First Amendment. Judge Janice Rogers Brown, writing for the majority, said the “inflammatory images” cannot be deemed an attempt to convey information to consumers. The court said the FDA failed to show that graphic warning images have directly caused a decrease in smoking. DOJ lawyers last week asked the full D.C. Circuit to rehear that case. “The government’s interest in effectively communicating the health risks of smoking cannot be overstated,” the government said in its petition. The government said there’s sufficient evidence showing that “cigarette health warnings with graphics are far more effective in communicating health-risk information than are health warnings with text alone.” The tobacco companies are expected to respond to the DOJ petition later this month. Kessler didn’t say when she would rule in the corrective statements dispute. The judge said she is not bound to accept the proposed language from the Justice Department. She indicated she was inclined to modify the language. Contact Mike Scarcella at mscarcella@alm.com.

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