In 1999, the U.S. Department of Justice filed a civil racketeering suit that accused tobacco companies of deceiving the public about their products. The case is before U.S. District Court Judge Gladys Kessler of the United States District Court for the District of Columbia. In 2006, United States Judge Kessler ordered tobacco companies to pay for nationwide print, television and radio ads that listed the health risks of smoking. The tobacco companies appealed the decision. The appeals court remanded the case and directed Judge Kessler to craft corrective statements confined to purely factual and uncontroversial information.
In November 2012, Judge Kessler ruled that cigarette marketing must carry the following preamble: “A federal court has ruled that the defendant tobacco companies deliberately deceived the American public about the health effects of smoking, and has ordered those companies to make this statement.” Judge Kessler ordered that the corrective statements appear on company websites, cigarette packages, and newspaper and television ads.
In January 2013, the manufacturers filed a joint appeal from Judge Kessler’s 2012 ruling. Last year, the U.S. Court of Appeals for the D.C. Circuit, held that Judge Kessler could not require that the ads highlight her conclusion that the tobacco companies “deliberately deceived” consumers. The U.S. Appeals Court ruling found that Kessler’s preamble exceeded in part the District Court’s limited remedial authority, saying the preamble “reveals nothing about cigarettes. Instead, they disclose defendants’ prior deceptive conduct.”
Judge Kessler remains determined to enforce her order that five corrective statements be used by tobacco manufacturers to inform consumers of the risk of smoking cigarettes.
On February 8, 2016, Judge Kessler rejected the tobacco companies’ proposal for a new version of the ads, finding they attempted to rewrite language the D.C. Circuit approved. Judge Kessler stated in her 2016 order, “That is ridiculous, a waste of precious time, energy and money for all concerned, and a loss of information for the public.” The Judge further stated, “The court has no intention of following that path, although it is obvious that defendants are, once again, attempting to stall any final outcome to this long standing litigation.”
Judge Kessler said the warnings should be revised fairly to conform to the appeals court’s requirements. “The newly crafted preambles do not in any way send a message to the public that Defendants deceived them in the past,” explains the judge, “nor that Defendants are being punished for their previous conduct.”
“In accordance with the remand of the Court of Appeals, this court adopts the corrective statements submitted by the government,” Judge Kessler held.
Following their scorched earth pattern, Big Tobacco is likely to appeal again.
