Major cigarette manufacturers on Friday won a partial victory in their long-running challenge to certain disclosure requirements.
But they also lost, in what amounted to a split decision by the U.S. Court of Appeals for the District of Columbia Circuit.
A trial judge had ordered the cigarette companies to publish on their websites, in their advertising and on their packages a series of “corrective statements,” which the tobacco companies challenged on First Amendment and other grounds.
One of the statements was that “cigarette companies intentionally designed cigarettes with enough nicotine to create and sustain addiction.” Another was that “tobacco companies intentionally designed cigarettes to make them more addictive.”
In a unanimous decision, a three-judge appellate panel agreed with Philip Morris USA and three other companies that a “district court, in ordering defendants to announce that they deliberately deceived the public, exceeded its authority.”
The court reasoned that “correcting consumer misinformation, which focuses on remedying the effects of past conduct,” is an impermissible objective under the civil RICO statute.
At the same time, Judge David Tatel wrote for the appellate court, “the manufacturers’ objection to disclosing that they intentionally designed cigarettes to ensure addiction is both waived and foreclosed by the law of the case.”
Tatel explained that the companies had “never challenged the district court’s finding that ‘defendants have designed their cigarettes to precisely control nicotine delivery levels and provide doses of nicotine sufficient to create and sustain addiction.”
“Nor did they object to the district court’s determination that ‘every aspect of a cigarette is precisely tailored to ensure that a cigarette smoker can pick up virtually any cigarette on the market and obtain an addictive dose of nicotine.”” Tatel added.
The trial judge’s conclusions followed a trial that “spanned nine months, involved hundreds of witnesses, and saw nearly 14,000 exhibits entered into evidence,” Tatel noted. In 2006, the trial judge cited some 4,000 findings of fact in identifying the cigarette manufacturers’ “pervasive scheme to defraud consumers and potential consumers of cigarettes” that had been carried out “over the course of more than 50 years.”
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