Tobacco Companies File Suit Against State To Block Anti-Tobacco Advertisements
Tobacco companies R.J. Reynolds and Lorillard on Tuesday filed a lawsuit in Sacramento federal court that seeks an injunction against state-produced anti-tobacco advertisements, the Los Angeles Times reports. The lawsuit alleges that the state has violated the constitutional rights of the companies by "using industry-funded advertisements to vilify tobacco companies and poison the minds of potential jurors in tobacco-related cases," the Los Angeles Times reports. The ads, produced by the Department of Health Services, are funded with a 25-cent-per-pack state tax on cigarettes approved by California voters in 1988 as Proposition 99, which established the Cigarette and Tobacco Products Surtax Fund. One of the accounts in the fund, the Health Education Account, was established to cover the cost of "programs for the prevention and reduction of tobacco use, primarily among children, through school and community health education programs." One of the ads mentioned in the lawsuit features actors who portray tobacco executives and deliver false testimony in regulatory hearings and press interviews; a second ad mentioned in the suit features children in a schoolyard as cigarettes rain from the sky (Jones, Los Angeles Times, 4/3).
Reynolds and Lorillard claim that the ads inaccurately "portray tobacco company employees and executives as loathsome persons motivated by cynicism, greed and malevolence" and that they occur with "no disclosure that the scenes and scripts depicted are the invention of an advertising agency" (Walsh/Hill, Sacramento Bee, 4/3). The companies argue that California forces tobacco companies to fund an ad campaign produced to "destroy their reputation" in violation of the First Amendment, the Los Angeles Times reports (Los Angeles Times, 4/3). According to the lawsuit, a "central component of the right of free speech is the right not to be compelled to pay for speech that one would not voluntarily fund." The lawsuit maintains the companies have not sought and will not seek an injunction to block other ads that address tobacco-related health issues, the Winston-Salem Journal reports (Louis, Winston-Salem Journal, 4/3). The lawsuit also alleges that the state has violated the right that tobacco companies have to a fair trial because the ads could prompt future juries to believe that the "tobacco industry is a very powerful, deceptive and dangerous enemy of the public's health." California has used about $1 billion in Proposition 99 funds on ads to shift public opinion about smoking and tobacco companies, and as a result "a super-majority of California residents now believes that the tobacco companies, having lied to consumers in the past, bear the burden of proving that they are telling the truth," according to the lawsuit (Martin, San Francisco Chronicle, 4/3). In addition, the lawsuit alleges that California has denied tobacco companies their right to due process because the state does not allow the companies to question the validity of the ads. "We have no opportunity to respond to that because you have the full weight of the state of California behind these untrue and false messages," Daniel Donahue, senior vice president and deputy general counsel for Reynolds, said. In addition to the state, the lawsuit names DHS; DHS Director Dr. Diana Bonta; and Dileep Bal, acting chief of the DHS Tobacco Control Section, as defendants (Los Angeles Times, 4/3).
"If big tobacco wants to fight, I say: Bring it on," Gov. Gray Davis (D) said, adding, "They spend infinitely more than we do (on marketing) to get their message out. I don't think anyone should feel too sorry for them" (Brice, AP/Contra Costa Times, 4/3). He added, "Yes, these ads are tough, but the research shows that the more aggressive the ads, the greater the decline in the number of smokers." Bonta called the lawsuit "another tactic of the tobacco industry to delay what they should be doing. They should be in a position of no longer selling a product that kills so many" (Sacramento Bee, 4/3). Barry Goode, a legal advisor for the governor, said that the legal system provides fair trials for tobacco companies because attorneys and judges can question potential jurors, and "every day, all over the state, they find fair jurors, impartial jurors," the Los Angeles Times reports (Los Angeles Times, 4/3). KQED's "California Report" today reported on the lawsuit (Peterson, "California Report," KQED, 4/3). The full segment will be available online in RealPlayer after the broadcast.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.