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Judge, Big Three tobacco manufacturers reach deal on corrective statements – Winston-Salem Journal: Local Business

A federal judge and the Big Three tobacco manufacturers have reached an agreement on five “here is the truth” corrective statements for cigarette marketing.

Judge Gladys Kessler ruled in November 2012 that cigarette marketing should carry the overarching 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.”

In May 2015, a U.S. Appeals Court ruling found that Kessler’s preamble exceeded, in part, the District Court’s authority, saying the preamble “reveals nothing about cigarettes. Instead, they disclose defendants’ prior deceptive conduct.”

“After all … the statute reads ‘prevent and restrain,’ not ‘prevent, restrain and discourage.’”

The consent order, approved Tuesday, strips that preamble and replaces it with “a federal court has ordered Altria, R.J. Reynolds Tobacco, Lorillard and Philip Morris USA to make this statement about the addictiveness of smoking and nicotine.” The ruling affects ITG Brands LLC, the successor to Lorillard Inc.

The compromise did not include a “trigger date” for when the ads would start. Altria Group Inc. spokesman Brian May said Friday that the trigger date is the date on which all appeals are exhausted.

The manufacturers filed their latest appeal with the U.S. Appeals Court for the District of Columbia on April 8.

“We continue to object to the content of the corrective communications, including the language in the preamble, and intend to pursue the appeal, May said.

Kessler said the order “is the complete agreement of the parties as to corrective statements and supersedes any prior negotiations, agreements or understandings of the parties.”

Kessler ordered the corrective statements appear on company websites, cigarette packages, prime-time network television ads and in newspaper ads in the front section of Sunday editions. The ad will not appear in the Winston-Salem Journal, but it will in The Charlotte Observer. Each newspaper ad will feature one of the five corrective statements. The 260 TV spots will run over a 52-week period

The manufacturers filed a joint appeal of Kessler’s ruling in January 2013. They have tried to persuade Kessler to reject the statements, calling them “forced public confessions” in legal filings.

The compromise does not include Reynolds’ complaint that it should not have to run additional ads related to its 2004 purchase of Brown and Williamson Tobacco Corp.

The manufacturers have said the 2009 Tobacco Control Act eliminated any reasonable likelihood the companies would commit future violations, thus making the need for corrective statements moot.

Responding to the May 2015 appellate ruling, Kessler said the federal government has agreed to remove “deliberately deceived the American public” from the preamble. But Kessler said the phrase “Here is the truth” remains appropriate to begin each corrective statement.

The U.S. government filed a lawsuit in 1999 against the nation’s largest tobacco manufacturers.

The initial ban on labels — such as “low tar,” “light” and “mild” — was part of Kessler’s landmark 2006 ruling that found the manufacturers guilty of racketeering and fraud for deceiving the public about the dangers of smoking, in particular whether certain products were marketed with an expressed or implied lower-risk health message or descriptor.

Kessler ruled that cigarettes marketed as low tar, light and mild have been found to be no safer than others.

In May 2009, a U.S. Court of Appeals panel unanimously upheld requirements that manufacturers change the way they market cigarettes. The Food and Drug Administration banned the use of the labels in June 2010.

Corrective statements

The order from federal Judge Gladys Kessler specifies “truth” statements for five categories:

* Adverse health effects of smoking, such as “more people die every year from smoking than from murder, AIDS, suicide, drugs, car crashes and alcohol combined; ”
* Addictiveness of smoking and nicotine;
* Lack of significant health benefit from smoking low-tar, light, ultra-light, mild and natural cigarettes;
* Manipulation of cigarette design and composition to ensure optimum nicotine delivery, such as “when you smoke, the nicotine actually changes the brain – that’s why quitting is so hard; ” and,
* Adverse health effects of exposure to secondhand smoke, such as “secondhand smoke kills over 3,000 Americans each year.”

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