U.S. tobacco companies' appeal to delay court-ordered advertising blitz

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[January 23, 2014]  By David Ingram

WASHINGTON (Reuters) U.S. consumers will likely have to wait until 2015 or later to see a court-ordered advertising blitz detailing tobacco companies' deception, a lag of nine years after the original ruling, a court heard on Wednesday.

Tobacco lawyers said at the hearing in U.S. District Court in Washington, D.C., that they planned to push forward with an appeal about the wording of the ads, even after they struck an agreement this month with the Justice Department and anti-smoking advocates about what the ad campaign would look like in newspapers and on television.

The companies have fought the lawsuit since President Bill Clinton's Justice Department filed it in 1999, alleging the cigarette makers engaged in racketeering by hiding from the public the health consequences of tobacco use.

They lost the lawsuit and an appeal, and they were ordered to place the ads, known legally as corrective statements. U.S. District Judge Gladys Kessler said Wednesday the latest appeal would likely delay the ads until 2015 or later.

"I'm of course concerned about the delays," Kessler told lawyers at the hearing. "The bottom line is the public is not getting what I would consider to be the benefit of the corrective statements."

Defendants Altria Group Inc, Lorillard Inc and Reynolds American Inc argue that the proposed wording of the ads would violate their free speech rights.

One of the proposed ads begins: "A federal court has ruled that the defendant tobacco companies deliberately deceived the American public by falsely selling and advertising low tar and light cigarettes as less harmful than regular cigarettes."

Kessler ruled for the government in August 2006. It has since taken more time to implement her ruling than it did to hold a trial and issue a judgment.


The next step is for Kessler to approve the logistics of the proposed ad blitz. The sides agreed this month the campaign would include a year's worth of network TV advertisements in prime time, weeks of newspaper ads and more than a decade of declarations on tobacco company websites. The agreement even goes into details such as font and type size.

Once Kessler approves, a federal appeals court in Washington is expected to take up the speech question and rule perhaps in 2015, according to an estimate Kessler made in court.

"It will take some time, your honor, but I think that reflects the weightiness of the issues at stake," Noel Francisco, a partner at the law firm Jones Day who represents Reynolds American, told the judge.

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A further appeal to the U.S. Supreme Court by whoever loses on the speech question "seems entirely possible," Justice Department lawyer Daniel Crane-Hirsch said.

Kessler said in 2012 that the ad campaign would not violate the companies' speech rights because the wording is factual and not controversial.

Crane-Hirsch and tobacco lawyers warned Kessler the process could take even longer if she were to modify the logistics of the ad campaign that they have hammered out. Fox Broadcasting Co and the National Association of Black Owned Broadcasters, for example, have filed court papers asking that some of the ads go on their networks.

Separately, the sides are still arguing over how tobacco companies should change their advertising at points of sale.

Howard Crystal, a lawyer who represents anti-smoking advocates as part of the lawsuit, urged Kessler to move quickly. "We'd like to get finality," he said.

Early in the long-running case, the Justice Department hoped to extract $280 billion from the companies to pay for a smoking cessation program and other remedies.

It later dropped the demand to $14 billion, and then Kessler ruled she could not force them to pay for such a program at all.

The case is USA v. Philip Morris USA, et al, U.S. District Court for the District of Columbia, No. 99-cv-02496.

(Editing by Howard Goller and Cynthia Osterman)

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