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Judges seem wary of overruling tobacco judgment

Judges seem wary of overruling tobacco judgment

Originally published: April 20, 2012 12:01 PM
Updated: April 20, 2012 2:06 PM
By The Associated Press  FREDERIC J. FROMMER (Associated Press)

WASHINGTON – (AP) — A bid by tobacco companies to overrule a court
judgment that they must do corrective advertising about the dangers of
smoking received a chilly response from a federal appeals court Friday.

The companies want U.S. District Judge Gladys Kessler’s order overturned
because a 2009 law gave the Food and Drug Administration authority over
the industry, including power to require graphic cigarette warnings. In
2006, Kessler ruled that America’s largest cigarette makers concealed
the dangers of smoking for decades, in a civil case the government had
brought under the Racketeer Influenced and Corrupt Organizations, or
RICO law.

In court filings, the companies — including Philip Morris USA, the
nation’s largest tobacco maker — say that the 2009 law “eliminated any
reasonable likelihood that defendants would commit future RICO
violations,” thus making the need for remedies like corrective
statements moot.

Judge David Sentelle, one of three judges on the appeals court panel,
told a lawyer arguing for the tobacco companies that the logic in their
case “escapes me.”

“Your client is here because they didn’t obey the law,” he said.

The attorney, Miguel A. Estrada, argued that the companies couldn’t
violate the law even if they wanted to, because of the oversight
authority that the FDA now has under the 2009 Family Smoking Prevention
and Tobacco Control Act. He used an analogy of a car thief who is placed
under house arrest, and so is prevented from engaging in the criminal

But Judge Laurence H. Silberman, like Sentelle an appointee of
Republican President Ronald Reagan, had a quick rejoinder, wondering if
“there’s evidence you’ve broken out of your house.”

Estrada said that even if one assumed the tobacco companies were run by
“black-hearted people,” they won’t have an opportunity to violate the
law now.

In a separate case, some of the tobacco companies in this case —
although not Philip Morris — are challenging the 2009 law’s authority
for the FDA to require the companies to use graphic cigarette warning

The nine graphic warnings proposed by the FDA include color images of a
man exhaling cigarette smoke through a tracheotomy hole in his throat,
and a plume of cigarette smoke enveloping an infant receiving a mother’s
kiss. A federal judge in Washington has ruled the FDA’s proposed
warnings violate First Amendment free speech protections and he has
blocked their implementation. That case has been appealed to the U.S.
Circuit Court of Appeals for the District of Columbia, the same court
from which the three-judge panel in Friday’s case was drawn.

Sentelle told the tobacco lawyer that the companies are trying to get
rid of the very law that they’ve cited in this case. And he noted that
the 2009 legislation specifically says that nothing in the law should be
construed to affect any action pending in court.

Kessler, the judge who ruled against the tobacco companies, has said she
wants the industry to pay for broadcast and print ads, but has not said
what corrective statements should be included in them. The government
wants the companies to admit that they lied to the public about the
dangers of smoking and to pay for an advertising campaign of
self-criticism. The companies have argued the statements are
inflammatory, inaccurate and “designed solely to shame and humiliate”
the companies.

The defendants in Kessler’s corrective statements case include Philip
Morris USA’s parent company, Richmond, Va.-based Altria Group Inc.;
Greensboro, N.C.-based Lorillard Inc., and R.J. Reynolds Tobacco Co.,
and its parent company, Reynolds American Inc., based in Winston-Salem,

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