Tobacco companies battle the Obama administration on Monday, as a key court considers what they can be compelled to say about their cigarettes.
In a long-running conflict pitting free speech against public health, R.J. Reynolds Tobacco Co. and several other leading firms are challenging the vividly worded statements mandated by a federal judge.
“The district court ordered a series of inflammatory statements that require (the companies) to denigrate themselves as unscrupulous villains who deceived the American public in the past and who continue to do so today,” tobacco company attorneys fumed in a legal brief.
But in a 40-minute oral argument scheduled before the U.S. Court of Appeals for the District of Columbia Circuit, a Justice Department lawyer will insist that the so-called “corrective statements” are necessary to warn consumers and offset past deceptions.
An ideologically divided three-judge panel, two of them appointed by Democratic presidents and one appointed by a Republican, will have to sort it all out. Their word will be crucial, but not necessarily final, for this roller-coaster of a case begun by the Clinton administration back in 1999.
“It’s very important, and hopefully this is the last round of appeals,” Vince Willmore, vice president of communications for the Campaign for Tobacco-Free Kids, said in an interview Friday. “It’s been 16 years since this case was filed, (and) I think we’re getting to the end of it.”
The argument Monday will carry special poignancy for some.
Miguel A. Estrada, the Harvard Law School-trained attorney representing R.J. Reynolds Tobacco, Lorillard Tobacco Co. and the Altria Group Inc., which owns Philip Morris USA, was himself once nominated to the D.C. Circuit Court. Senate Democrats filibustered his nomination until he withdrew.
Estrada’s Justice Department adversary, Melissa N. Patterson, is, likewise, a Harvard Law School graduate.
A spokesman for the Winston-Salem, N.C.-based Reynolds American Inc., parent company of R.J. Reynolds Tobacco, declined to comment Friday, citing the pending litigation.
The argument Monday was sparked by the Clinton administration’s 1999 lawsuit charging the tobacco companies with violations of the Racketeer Influenced and Corrupt Organizations Act.
After much legal huffing and puffing, and following a nine-month trial, U.S. District Judge Gladys Kessler in 2006 issued a 1,683-page opinion concluding the companies “devised and executed a scheme to defraud consumers and potential consumers.”
“The trial record amply demonstrates that (the companies) have made false, deceptive and misleading public statements about cigarettes and smoking from at least January 1954 . . . up until the present,” Kessler wrote.
To clear the air, Kessler ordered the companies to publish corrective statements on television, in newspapers, on corporate websites and at the point of sale, among other places. She directed that the statements address issues including addiction, adverse health effects and the ways companies designed cigarettes.
Proposals and counterproposals over the precise language then flew back and forth, with the tobacco companies saying they wanted statements that contained “factual and noncontroversial information.” Kessler went further in a 2012 opinion than the companies wanted.
The Clinton administration appointee, for instance, directed companies to say they had “deliberately deceived the American public” and that “cigarette companies intentionally designed cigarettes with enough nicotine to create and sustain addiction.”
“There is nothing at all ‘corrective’ about the anger-inducing, inaccurate statements ordered by the district court,” Estrada and other tobacco company attorneys declared in a brief.
Kessler’s order highlights a big First Amendment question, concerning what scholars and lawyers call compelled speech. The First Amendment protects both the right to speak and the right not to speak; meaning, as a general rule, that the government cannot force a person or a corporation to say something.
In an important 1977 decision, for instance, the D.C.-based appellate court ruled the Federal Trade Commission could not compel the makers of Listerine to include the phrase “contrary to prior advertising” in an otherwise required statement that the mouthwash will not help prevent colds
There are exceptions, though. Factual and noncontroversial statements, such as a list of ingredients, can be required.
“The First Amendment does not constrain the district court from directing defendants to translate and summarize the court’s factual findings simply because those findings may evoke a strong reaction,” attorneys for the Tobacco-Free Kids Action Fund wrote in a brief.
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