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 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.
NEXT: LOGISTICS
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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