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 The D.C. Circuit Court of Appeals said the Reynolds American Inc
unit, whose brands include Camel, Newport and Pall Mall, did not
show that the judge who ordered the ads exceeded her authority, and
waited too long to challenge the requirement.
Reynolds American spokesman Bryan Hatchell declined to comment.
The ads were among a series of remedial measures imposed in 2006 by
U.S. District Judge Gladys Kessler in Washington, D.C. against R.J.
Reynolds, Altria Group Inc's Philip Morris USA and other tobacco
companies, after she found them liable for concealing the risks of
smoking for decades.
Kessler had required that each defendant run primetime ads on a
major TV network at least once a week for a year.
The companies later litigated over what the ads should say.
But R.J. Reynolds also objected to the U.S. Department of Justice's
insistence that it run two sets of ads, one for itself and one in
its capacity as the successor to Brown & Williamson, which it bought
in 2004.
In Tuesday's decision, however, Circuit Judge David Tatel said R.J.
Reynolds failed to raise the double-ad issue in 2006 when it first
appealed Kessler's remedial order.
He said this meant the Winston-Salem, North Carolina-based company
could not be excused for waiting until 2014, when the government
made its position known during negotiations, to object.
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"Simply put, RJR cannot have it both ways," Tatel wrote. "Either the
remedial order imposes a double-ad requirement, in which case we
have appellate jurisdiction but RJR has no excuse for its
untimeliness, or the order is unclear, in which case we would lack
jurisdiction to entertain this appeal."
The decision upheld Kessler's June 2014 order outlining the
dissemination of corrective statements. R.J. Reynolds agreed to the
order but preserved its right to appeal the double-ad requirement.
On Oct. 21, British American Tobacco Plc offered to buy Reynolds
American for $47 billion.
The case is U.S. et al v. Philip Morris USA Inc et al, D.C. Circuit
Court of Appeals, No. 15-5210.
(Reporting by Jonathan Stempel in New York; Editing by Chris Reese)
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