By Brent Kendall
WASHINGTON--A federal appeals court on Friday issued a split
ruling on what kinds of statements tobacco companies must make in
product warnings after a judge found them in violation of federal
law nearly a decade ago.
A three-judge panel of the U.S. Court of Appeals for the
District of Columbia Circuit said leading U.S. cigarette makers can
be required to say they intentionally designed cigarettes to
sustain addiction but can't be required to say they deliberately
deceived the public about the dangers of smoking.
The appeals court resolved the case without having to address
some potentially difficult First Amendment questions about
government compulsion of speech by private parties.
At issue was the language of product warnings U.S. District
Judge Gladys Kessler ordered for top tobacco companies in 2012
after an earlier 2006 opinion that concluded cigarette makers
violated civil racketeering law. That ruling said tobacco companies
participated in a decadeslong scheme to deceive consumers about the
harms of smoking.
Judge Kessler required tobacco companies to make "corrective
statements" revealing the truth about their products to prevent
future deception. She ordered that the statements appear in
newspaper and television ads, as well as on their websites and
product packaging.
Defendants included Altria Group Inc. and its Philip Morris USA
subsidiary, R.J. Reynolds Tobacco Co. and Lorillard Tobacco Co.
The companies have battled with the Justice Department and
public-health advocates over the exact wording of the warning
statements. Friday's ruling could further delay the date when any
such warnings appear in public.
The D.C. Circuit ruled Judge Kessler couldn't force the tobacco
companies to publish a "preamble" to the product warnings that
would have said, "A federal court has ruled that Altria, R.J.
Reynolds Tobacco, Lorillard, and Philip Morris USA deliberately
deceived the American public about the health effects of smoking,
and has ordered those companies to make this statement. Here is the
truth."
The appeals court said Judge Kessler couldn't order such a
statement because federal racketeering law allowed her to prevent
and restrain only future deception by tobacco companies.
The D.C. Circuit, however, upheld Judge Kessler's order
requiring several other statements on the product warnings, such
as, "Cigarette companies intentionally designed cigarettes with
enough nicotine to create and sustain addiction."
Another warning statement the court allowed says: "Cigarette
companies control the impact and delivery of nicotine in many ways,
including designing filters and selecting cigarette paper to
maximize the ingestion of nicotine, adding ammonia to make the
cigarette taste less harsh, and controlling the physical and
chemical makeup of the tobacco blend."
The appeals court said the tobacco companies couldn't make
free-speech arguments against some of the warning statements
because they hadn't raised those challenges at earlier stages of
the case.
Altria Group spokesman Brian May said the company was gratified
the appeals court struck down the preamble to the corrective
statements, "which was the critical part of the appeal. The court
correctly found that the preamble violated federal law by focusing
on past conduct, instead of the health consequences of
cigarettes."
The case dates to a lawsuit the Justice Department filed in 1999
alleging cigarette makers conspired to deceive the public about the
health consequences of smoking.
The Justice Department said it is considering its options and
"is committed to continuing its efforts to hold accountable those
who violate the law by deceiving the American public or endangering
the health and safety of American consumers."
Reynolds declined to comment, citing ongoing litigation, and
Lorillard didn't immediately respond to requests for comment.
Tripp Mickle contributed to this article.
Write to Brent Kendall at brent.kendall@wsj.comGBP
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