WARNING: Antismoking messages would be featured on news organizations' websites.
WARNING: Antismoking messages would be featured on news organizations’ websites. (Anna Bryukhanova / iStockphoto.com)

Tobacco companies have battled the federal government in court for nearly 15 years over accusations of deceptive advertising, with no end in sight. The latest holdup: a fight over which television networks and newspapers should carry antismoking ads ordered by a federal judge in Washington.

The tobacco companies, federal government and public health groups filed a proposal with the court in January detailing which networks and newspapers would run the ads. Cable networks and advocates for newspapers not on the list argued the ads wouldn’t reach key demographics — African Americans, Hispanic Americans and young people, especially — if they were excluded.

A revised version of the plan filed in April added more newspapers and would allow the tobacco companies to buy ad time on networks other than ABC, CBS and NBC, with the goal of reaching more African-American viewers. But two cable networks have already filed opposition papers saying the changes aren’t enough.

Ad revenue is also at stake. The media companies haven’t said in court papers how much they would earn if included on the list, but the television ads are slated to run five times per week during prime time for one year under the latest version of the plan. 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.It’s been eight years since U.S. District Judge Gladys Kessler entered the order requiring the ads, but the public is unlikely to see them any time soon. Once the judge rules on where the ads should run and how they’ll be formatted, the tobacco companies are already gearing up for an appeal over what the ads will say. The implementation plan could be challenged as well, according to court documents.

Under the latest proposal, the tobacco companies will have to run the ads on their choice of ABC, CBS or NBC, but they can run up to one-third of the ads each month on other networks, assuming they meet certain viewership benchmarks. The revised plan included newspapers in additional markets. The tobacco companies would also run notices detailing the health risks of smoking on their websites — including versions optimized for mobile devices — and cigarette packages, as previously ordered.

Kessler gave media companies that challenged the original plan until May 15 to weigh in on the revisions.

On April 24, lawyers for A&E Television Networks LLC, represented by Miller & Wrubel and London & Mead, argued in court papers that the parties continued to ignore the ability of A&E and other cable networks “to reach additional tens of millions of affected and potentially affected and susceptible members of the African American population than would be reached solely through CBS, NBC and ABC.” (Emphasis in original.)

The same day, lawyers for Univision Communications Inc. from Quinn Emanuel Urquhart & Sullivan filed opposition papers arguing the revised plan wouldn’t reach another important demographic: young Hispanic Americans.

“While it is laudable that the revised proposed consent order includes changes designed to increase exposure to African Americans,” Univision’s lawyers wrote, the changes “do not even mention Hispanic Americans, or young Hispanic Americans, whose interests should also be protected by this court.”

Tobacco company representatives and their lawyers declined to comment or did not return interview requests.

Representing Altria Group Inc., the parent company of Philip Morris USA Inc., is Arnold & Porter; Gibson, Dunn & Crutcher; Paul, Weiss, Rifkind, Wharton & Garrison; and Winston & Strawn. Jones Day and Womble Carlyle Sandridge & Rice represent R.J. Reynolds Tobacco Co. Thompson Coburn represents Lorillard Tobacco Co.

A lawyer for the public health groups, Howard Crystal of Meyer Glitzenstein & Crystal, declined to comment. A U.S. Department of Justice spokeswoman did not return a request for comment.

The lawsuit dates to 1999, when the federal government accused the tobacco companies of deceiving the public about the health risks of smoking. In 2006, Kessler found the tobacco companies liable.

As part of her order, she said the tobacco companies must publish “corrective statements” not only on their own websites and cigarette packages, but also in newspapers and on television. Kessler said at the time that she was crafting a remedy that used “the same vehicles which defendants have themselves historically used to promulgate false smoking and health messages.”

The parties fought on appeal over the next few years about Kessler’s ruling, including the “corrective statements” requirement. The U.S. Court of Appeals for the D.C. Circuit found Kessler had authority to order the tobacco companies to run the notices. The appeals court sent the case back for the parties to figure out what the statements would say, how they would look and where they would appear.

The tobacco companies, government and public health groups, meeting with a special master, spent the past year negotiating the details of executing Kessler’s order — how the notices will look and where they’ll appear — but are preparing to fight over the message.

The tobacco companies are appealing Kessler’s November 2012 ruling on the content of the ads. Under her order, the ads would state that a judge found that the tobacco companies had deceived the public and highlight the health risks associated with smoking and secondhand smoke.

In February 2013, the U.S. Court of Appeals for the D.C. Circuit agreed to put the appeal on hold at the parties’ request while they sorted out the implementation issues.

Contact Zoe Tillman at ztillman@alm.com.