WASHINGTON Jan 22 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
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
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.
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
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.