July 28, 2012

Court Leaves Corrective-Ad Ruling Against Big Tobacco Intact: Despite Efforts By Philip Morris and Others to Overturn Federal Order, Appeals Court Rules That Tobacco Companies Must Market the Dangers of Smoking

A federal appeals court last week left intact a court judgment that ordered tobacco companies to do corrective advertising about the dangers of smoking.

The companies sought to overturn a federal judge's order on grounds that the order had been superceded by a 2009 law that gave the Food and Drug Administration authority over the industry, including power to require graphic cigarette warnings. In court filings, the companies — including Philip Morris, the nation's largest tobacco maker — say that the 2009 Tobacco Control Act eliminated any reasonable likelihood that the companies would commit future violations, thus making the need for remedies like corrective statements moot.

In a 3-0 decision, the appeals court said the regulatory oversight provided by the 2009 Tobacco Control Act is not a replacement for the judge's ruling on corrective advertising, an AP news release reports. The appeals court supported a lower court decision by U.S. district judge Gladys Kessler that if the companies were not deterred by the possibility of court-imposed action, they were not likely to be deterred by the 2009 Tobacco Control Act either. In 2006, Kessler ruled that America's largest cigarette makers concealed the dangers of smoking for decades, in a civil case the federal government brought under the Racketeer Influenced and Corrupt Organizations law, or RICO. Even if Kessler had found that the companies were likely to comply with the Tobacco Control Act, the court-imposed requirements would not have been moot, wrote appeals court judge Janice Rogers Brown. The court-imposed injunctions, unlike the Tobacco Control Act, "are specifically designed to combat racketeering activity," Brown pointed out. Brian May, a spokesman for Philip Morris, said the company is disappointed by the appeals court ruling, the release reports.

The defendants in Kessler's corrective statements case include Philip Morris USA's parent company, Richmond, Va.-based Altria Group; Greensboro, N.C.-based Lorillard, and R.J. Reynolds Tobacco Co., and its parent company, Reynolds American Inc., based in Winston-Salem, N.C. In a separate decision, the appeals court refused to take up a tobacco industry challenge to one of Kessler's orders that the companies disclose marketing data to the government, reports the news release by AP writer Pete Yost.

Judge Brown is an appointee of former George W. Bush. The other two members of the panel, Chief judge David Sentelle and Laurence Silberman, were appointed by Ronald Reagan, the release reports.