Tobacco companies say corrective statements go too far

Tobacco companies are urging a federal judge to reject the government’s proposed industry-financed corrective statements, calling them “forced public confessions.” The Justice Department countered that the statements need to be strong enough to protect people from future false statements made by cigarette makers. The statements include admissions that the companies lied about the dangers of smoking. U.S. District Judge Gladys Kessler, who is hearing the case, has already said she wants the industry to pay for corrective statements in various types of ads.

Although she has not made a decision on what the statements will say, she said at Monday’s hearing that she doesn’t have to take the government’s proposed statements word-for-word, and will come up with “modifications.” In 2006, in a case the government brought in 1999 under the Racketeer Influenced and Corrupt Organizations, Kessler ruled that America’s largest cigarette makers concealed the dangers of smoking for decades. The proposed statements by the cigarette-makers would become the remedy to ensure the companies don’t repeat the violation.

In the 2006 ruling, which totaled more than 1,600 pages, Kessler wrote that the tobacco industry “survives, and profits, from selling a highly addictive product which causes diseases that lead to a staggering number of deaths per year, an immeasurable amount of human suffering and economic loss, and a profound burden on our national health care system.” The Justice Department’s proposed statements would cover areas such as the addictiveness of nicotine, the lack of health benefit from “low tar,” ‘’ultra-light” and “mild” cigarettes, and the negative health effects of second-hand smoke.

One example: “For decades, we denied that we controlled the level of nicotine delivered in cigarettes. Here’s the truth: Cigarettes are a finely-tuned nicotine delivery device designed to addict people.” Noel Francisco, an attorney representing R.J. Reynolds Tobacco Co., one of the companies challenging the statements, said that they violate an appeals court decision which held that any corrective statements must be purely factual and uncontroversial. Francisco, who was speaking on behalf of several tobacco companies, including Philip Morris USA, the nation’s largest tobacco maker, took issue with the “finely-tuned” statement.

“That’s not an objective description of what a cigarette is,” he said. In July, a federal appeals court rejected efforts by the tobacco companies to overrule Kessler’s ruling requiring corrective statements. The companies had argued that a 2009 law that gave the Food and Drug Administration authority over the industry eliminated “any reasonable likelihood” that they would commit future RICO violations. So now the companies are trying to limit the scope of the statements, which they have said are designed to “shame and humiliate” them. They are arguing for factual statements that include the health effects and addictive qualities of smoking.

Francisco argued that would be sufficient to prevent any fraud by the industry. “It undermines our ability to do a flip-flop in the future,” he said, adding that “confessional pejorative language is unnecessary.” But Justice Department lawyer Daniel K. Crane-Hirsch said that tobacco companies would “love” generic factual statements because it would not include the industry’s record of deception. “These companies don’t want people to know what they have done ... They would like to erase history,” he said. “The purpose here is not to humiliate,” he added, but to “inoculate” people against future false statements by the industry.