Federal Appeals Court: After 11 Years, There’s No More Reason For Big Tobacco To Delay Warning Ads

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It’s been more than a decade since a federal court ruled against the tobacco industry and ordered the nation’s largest cigarette producers to produce a new series of warning ads. Those warnings have yet to happen, as Big Tobacco has repeatedly appealed just about every aspect of the ruling. Today, one federal appeals panel handed the industry some very minor concessions while basically telling the companies to quit it already with all the legal butt-dragging.

For those coming to the story late, here’s a quick rundown (or as quick as one can be about a lawsuit filed in the previous century): In 1999, the Justice Department accused the tobacco industry of violating the Racketeer Influenced and Corrupt Organization [RICO] Act by conspiring to deny the health hazards of smoking.

A federal court ruled finally sided with the DOJ in 2006. As part of that ruling, the industry defendants were ordered to produce “corrective statements” that would be used in national TV, radio, and print ads warning people about the dangers of their products.

These ads were to hit on five particular points:
1: The adverse health effects of smoking;
2: The addictiveness of smoking and nicotine;
3: The lack of any significant health benefit from smoking “low tar” or “light” cigarettes;
4: The manufacturers’ manipulation of cigarette design to ensure optimum nicotine delivery;
5: The dangers of exposure to secondhand smoke.

Big Tobacco has appealed this matter at least a half-dozen times, arguing that it violates their First Amendment rights, that the wording of the proposed statements was not compliant with RICO, and so on. Confusing matters, some of the original defendants sold their business to competitors or other companies who were not part of the DOJ lawsuit.

This latest appeal was filed in response to a 2016 ruling, in which the judge agreed to shorten some of the required wording of the warnings, but did not agree with all of the changes the industry demanded in its 40-page brief on the matter.

And so the dispute went, once again, to the Court of Appeals for the D.C. Circuit.

This time, the tobacco defendants complained that the preamble — the few introductory words that are part of each of the five statements — is still outside the scope of the RICO matter and that some of the defendants’ First Amendment rights are being violated.

The latest version of the preamble, as proposed by the 2016 District Court ruling, read:
“A Federal Court has ordered [Defendants] to make this statement about [the topic of the statement]. Here is the truth…”

The RICO Act allows courts to order remedies that “prevent and restrain” future violations, but the tobacco companies say these statements are just continued lashings for previous bad conduct. The tobacco companies contend that both the part about the court order and the “Here is the truth” line have backward-looking implications.

In a ruling issued today [PDF], the D.C. Circuit agreed that there may be something to that argument when you consider the two items together. To resolve the matter, the appeals panel simply removed the “Here is the truth” wording.

The D.C. Circuit questioned why the defendants were bringing up the language about the court order now, when in the past they not only didn’t challenge it — some defendants specifically requested that the corrective statements included this attribution.

The appellate judges also once again shot down the defendants’ First Amendment argument, noting that the corrective statements are reasonably related to the government’s interest in preventing deception about smoking, and are not burdensome to the defendants.

This appeal also challenged two specific statements: The one about cigarettes as a nicotine-delivery system, and the one about “low tar” or “light” cigarettes. The D.C. Circuit shut down any hope of changes to the former, noting that the defendants had previously waived their right to challenge that statement.

However, the appeals panel did allow for some tweaking to the other statement. As it currently stands, the warning is about “selling and advertising low tar and light cigarettes as less harmful than regular cigarettes.” The D.C. Circuit agreed with the defendants that this is backward-looking, but rather than get rid of the warning, the panel said said it should be reworded so that it’s about “low tar and light cigarettes being as harmful as regular cigarettes.”

With these matters seemingly put to bed, the appeals court concludes by asking everyone to please just get this done already.

“[W]e see no reason why extensive proceedings will be required in the district court,” writes the panel. “With the minor revisions mandated in this opinion, the district court can simply issue an order requiring the corrected statements remedy to go forward.”

The question now is whether the tobacco industry will finally stop fighting these warnings and issue the court-ordered warnings, or if it will continue to find minor quibbles with each court decision, allowing it to delay this matter even longer.

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