In 1999, the United States filed a lawsuit in the U.S. District Court for the District of Columbia against the major cigarette manufacturers and related trade organizations alleging that defendants, while acting as an enterprise, fraudulently misled American consumers for decades about the risks and dangers of cigarette smoking and exposure to secondhand smoke in violation of the Racketeer Influenced Corrupt Organizations Act (RICO). In 2006, the court found that defendants violated civil provisions of RICO and that there was a reasonable likelihood that defendants would continue to violate RICO in the future. On appeal, the district court’s findings were upheld, in part, vacated, in part, and remanded, in part, to the district court. After the U.S. Supreme Court declined to hear appeals from both sides in the case in June 2010, the district court began to implement the 2006 final order.
This opinion by the District Court specifies language the tobacco companies must publish to correct previous false and misleading conduct by the tobacco companies. The court announces five subject headings each with specific corrective statements. After describing the required language the court provides a detailed legal analysis of the First Amendment grounds supporting the requirements. The court then dismisses other alternative challenges brought by the tobacco companies.
United States v. Philip Morris USA, Inc. Civil Action No. 99-2496 (D.D.C., 2012)
Government, through its agencies and officials including prosecutors, may seek to enforce its health laws. For example, the government may revoke the license of a retailer that sells tobacco products to minors. These cases may also directly involve the tobacco industry, for example, a government might impound and destroy improperly labeled cigarette packs.
Measures to regulate the marketing on tobacco packages. This includes both bans on false, misleading, deceptive packaging, as well as required health warnings on packaging.
(See FCTC Art. 11)
A violation of the right to expression, free speech or similar right to express oneself without limitation or censorship. The industry may claim that a regulation infringes on their right to communicate with customers and the public. Similarly, they may claim that mandated warnings infringe on their freedom to communicate as they desire.
A violation of the public’s right to information. The tobacco industry may claim that advertising, promotion or sponsorship, or packaging regulations limit the industry’s ability to communicate information to their customers and therefore infringes on the customer’s right to receive information, and to distinguish one product from another. Alternatively, public health advocates may claim that tobacco industry misinformation violates their right to accurate information or that government must be transparent in its dealings with the tobacco industry.
A violation of the right to procedural fairness. For example, a party may claim that a government agency did not consult with public or stakeholders when issuing regulations.
A violation of property rights, sometimes in the form of an expropriation or a taking by the government. The tobacco industry may argue that regulations amount to a taking of property rights because they prevent the use of intellectual property such as trademarks.
Any violation of a law designed to ensure fair trade, competition, or the free flow of truthful information in the marketplace. For example, a government may require businesses to disclose detailed information about products—particularly in areas where safety or public health is an issue.
Public statements may be defamatory, because they falsely provide a negative image or harm the reputation of individuals, organizations, or corporations.
A discussion on whether the regulations impose an undue burden on the tobacco industry. This argument may involve the costs of implementing regulatory measures.
Type of Tobacco Product
None
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
"This Court's authority to order corrective statements as a remedy for past deception was affirmed by the Court of Appeals. This Court has heeded its mandate to fashion Corrective Statements that are purely factual and uncontroversial and are directed at preventing and restraining the Defendants from deceiving the American public in the future.
Now that the text for the Corrective Statements has been finalized, the Court intends to address the details of implementation. Originally, Defendants were ordered to publish the Statements on their corporate websites, publish them as full-page advertisements in major newspapers, run them on major television networks, and attach onserts containing the Statements to their cigarette packaging. Original Opinion, 449 F. Supp. 2d at 939-41.16.These media were chosen in order to "structure a remedy which uses the same vehicles which Defendants have themselves historically used to promulgate false smoking and health messages." Id. at 928. Over six years have passed since the Court issued that ruling. During that interval, the types of media in which Defendants convey commercial messages of this nature have changed dramatically. See Appendix B (listing various implementation considerations).Because of the complexity of these issues, the Court has concluded that the most efficient way to address them is to have the parties meet and confer with the Special Master to see if agreement can be reached. If not, the Court will order a Report and Recommendation from the Special Master."
"The final step in the Zauderer analysis is determining whether the Corrective Statements are
unjustified or unduly burdensome. Defendants argue that the Statements are "unduly burdensome" because they "impose far greater burdens on Defendants' speech than necessary to further the Government's anti-fraud interest." Regarding the Gov't's Proposed Corrective Statements, 9 n.3 (citing Zauderer, 471 U.S. at 651). Defendants fail to point to any "burden" or "chill" that the Statements would actually have on their speech. There is no reason to believe that issuing these Corrective Statements would place any burden on Defendants' speech other than the desired one, namely preventing Defendants from denying the accuracy of them. See Spirit Airlines, 687 F.3d at 415 (considering, while conducting more stringent Central Hudson review, that DOT rule did not impose any burden on speech other than requiring disclosure of final price). Nor do Defendants acknowledge that the Court of Appeals has already concluded, presuming the Statements are "'purely factual and uncontroversial information' geared towards thwarting prospective efforts by Defendants to either directly mislead consumers or capitalize on their prior deceptions," that such Statements do not impermissibly chill Defendants' protected speech. Affirmance Opinion, 566 F.3d at 1144-45 (quoting Zauderer, 471 U.S. at 651). In sum, the Court finds no basis for deeming the Statements to be unduly burdensome."
"The next requirement for a government restriction on speech to receive First Amendment review under Zauderer is that the factual and uncontroversial disclosures must be aimed at correcting misleading speech and preventing deception of consumers. Milavetz, 130 S. Ct. at 1339-40. There can be no question that this is the purpose of the Corrective Statements. In the words of the Court of Appeals, the Statements intend to "reveal the previously hidden truth" about the products and "correct Defendants' campaign of deceptive marketing" in an attempt to prevent and restrain future RICO violations. Affirmance Opinion,
566 F.3d at 1140; see also Reynolds, 696 F.3d at 1216 & n.10 (observing that this case's remedial justification is "to correct any false or misleading claims made by cigarette manufacturers in the past"). Defendants suggest that the government's proposed statements were inappropriately motivated by a desire to motivate smokers to quit. Defs.' Reply in Support of Resp. to the Gov't's Proposed Corrective Statements, 13 [Dkt. No. 5893]. The Statements say nothing about the choices of individual smokers to
quit or continue smoking. Unlike in Reynolds, where the FDA chose images with the express purpose of "encourag[ing] current smokers to quit and dissuad[ing] other consumers from ever buying cigarettes," at 1218, this Court has never suggested or indicated that its Corrective Statements seek to encourage smokers to quit. In fact, it has specifically acknowledged that such a goal would be inappropriate and not authorized by the RICO statute. Thus, the Defendants offer no substantive argument that the Statements are not "geared towards thwarting prospective efforts by Defendants to either directly mislead consumers or capitalize on their prior deceptions by continuing to advertise in a manner that builds on consumers' existing misperceptions," as directed by the Court of Appeals. Affirmance Opinion, 566 F.3d at 1144-45 (citation omitted)."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
In 1999, the United States filed a lawsuit in the U.S. District Court for the District of Columbia against the major cigarette manufacturers and related trade organizations alleging that defendants, while acting as an enterprise, fraudulently misled American consumers for decades about the risks and dangers of cigarette smoking and exposure to secondhand smoke in violation of the Racketeer Influenced Corrupt Organizations Act (RICO). In 2006, the court found that defendants violated civil provisions of RICO and that there was a reasonable likelihood that defendants would continue to violate RICO in the future. On appeal, the district court’s findings were upheld, in part, vacated, in part, and remanded, in part, to the district court. After the U.S. Supreme Court declined to hear appeals from both sides in the case in June 2010, the district court began to implement the 2006 final order.
This opinion by the District Court specifies language the tobacco companies must publish to correct previous false and misleading conduct by the tobacco companies. The court announces five subject headings each with specific corrective statements. After describing the required language the court provides a detailed legal analysis of the First Amendment grounds supporting the requirements. The court then dismisses other alternative challenges brought by the tobacco companies.