State Anti-Smoking Advertisements Violate Tobacco Companies’ Rights, Company Lawyer Says
An attorney for R.J. Reynolds and Lorillard Tobacco on Monday told a panel of the 9th U.S. Circuit Court of Appeals in San Francisco that the state is violating the companies' first amendment rights by using cigarette tax revenue to fund anti-smoking advertisements, the San Francisco Chronicle reports (Egelko, San Francisco Chronicle, 5/11). The ads are produced by the Department of Health Services and are funded with a 25-cent-per-pack state tax on cigarettes approved by California voters in 1988 as part of Proposition 99, which established the Cigarette and Tobacco Products Surtax Fund (California Healthline, 6/11/03). The companies are attempting to revive a lawsuit that was dismissed in July by U.S. District Court Judge Lawrence Karlton. The suit alleged that the state violated tobacco companies' right to a fair trial because the tax-funded advertisements could prejudice future juries. In addition, the lawsuit alleged that the state had denied tobacco companies their right to due process because the state does not allow the companies to question the validity of the ads. R.J. Reynolds and Lorillard sought an injunction against the ads. Karlton ruled that because the state legally imposed the tax, the money may be used as the state sees fit, within legal boundaries (California Healthline, 7/23/03). Following the hearing, Attorney General Bill Lockyer (D) estimated that a portion of the cigarette tax proceeds have contributed $200 million over the past 15 years to the state's anti-tobacco advertising campaign. Lockyer said the ads have helped reduce the state's smoking rate to 16% in 2001-2002 from 22% in 1998.
H. Joseph Escher, an attorney for R.J. Reynolds and Lorillard, said that because taxes paid by smokers finance the campaign, the ads are "government-compelled speech" that "not only is contrary to [smokers'] interests but vilifies them." Deputy Attorney General Karen Leaf said that the campaign is intended to "raise public awareness about the ways tobacco companies market their products," adding that there is "no indication that the tobacco industry's ability to speak out is in any way impaired." Judge Stephen Trott said that by using the cigarette tax money for the advertisements, the state is asking the companies to "fund their own execution." He added that the state could circumvent the tobacco companies' legal objection by depositing the cigarette tax proceeds into the general fund, which the Legislature could then use to pay for the ads (San Francisco Chronicle, 5/11).This is part of the California Healthline Daily Edition, a summary of health policy coverage from major news organizations. Sign up for an email subscription.