NEW @ THCB PRESS: Surviving Workplace Wellness. Spring 2014. Al Lewis and Vik Khanna. e-book edition. # LIGHTHOUSE Healthcare. Illuminated.

The Washington Post covers a new order by DC district court judge Gladys Kessler, arising out of an old RICO case brought by the federal government, requiring that the tobacco companies publish advertisements to confess publicly that they previously lied about the safety of smoking and manipulated cigarettes to make them more addictive.  I have pulled the district court order and posted it, along with this appendix.  The order provides the exact language of the mandated advertisements, but no analysis.  Below the fold, I trace the convoluted path this case and a related case have taken through the compelled speech doctrine around the First Amendment, all thanks to a single judge on the Court of Appeals.

A. Adverse Health Effects of Smoking

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. Here is the truth:

• Smoking kills, on average, 1200 Americans. Everyday.
• More people die every year from smoking than from murder, AIDS, suicide, drugs, car crashes, and alcohol, combined.
• Smoking causes heart disease, emphysema, acutemyeloid leukemia, and cancer of the mouth, esophagus, larynx, lung, stomach, kidney, bladder,and pancreas.
• Smoking also causes reduced fertility, low birthweight in newborns, and cancer of the cervix and uterus.

B. Addictiveness of Smoking and Nicotine

A Federal Court has ruled that the Defendant tobacco companies deliberately deceived the American public about the addictiveness of smoking and nicotine, and has ordered those companies to make this statement. Here is the truth:

• Smoking is highly addictive. Nicotine is the addictive drug in tobacco.
• Cigarette companies intentionally designedcigarettes with enough nicotine to create and sustain addiction.
• It’s not easy to quit.
• When you smoke, the nicotine actually changes the brain – that’s why quitting is so hard.

C. Lack of Significant Health Benefit From Smoking “LowTar,” “Light,” “Ultra Light,” “Mild,” and “Natural”Cigarettes

A Federal Court has ruled that the Defendant tobacco companiesdeliberately deceived the American public by falsely selling andadvertising low tar and light cigarettes as less harmful thanregular cigarettes, and has ordered those companies to make thisstatement. Here is the truth:

• Many smokers switch to low tar and light cigarettes rather than quitting because they think low tar and light cigarettes are less harmful. They are not.
• “Low tar” and filtered cigarette smokers inhale essentially the same amount of tar and nicotine as they would from regular cigarettes.
∙  All cigarettes cause cancer, lung disease, heartattacks, and premature death – lights, low tar, ultra lights, and naturals. There is no safe cigarette.

D. Manipulation of Cigarette Design and Composition to Ensure Optimum Nicotine Delivery

A Federal Court has ruled that the Defendant tobacco companies deliberately deceived the American public about designing cigarettes to enhance the delivery of nicotine, and has ordered those companies to make this statement. Here is the truth:

∙Defendant tobacco companies intentionally designed cigarettes to make them more addictive.

∙Cigarette companies control the impact and deliveryof nicotine in many ways, including designing filters and selecting cigarette paper to maximizethe ingestion of nicotine, adding ammonia to make the cigarette taste less harsh, and controlling the physical and chemical make-up of the tobacco blend.

∙When you smoke, the nicotine actually changes the brain – that’s why quitting is so hard.

E. Adverse Health Effects of Exposure to Secondhand Smoke

A Federal Court has ruled that the Defendant tobacco companies deliberately deceived the American public about the health effects of secondhand smoke, and has ordered those companies to make this statement. Here is the truth:

∙Secondhand smoke kills over 3,000 Americans each year.

∙Secondhand smoke causes lung cancer and coronary heart disease in adults who do not smoke.

∙Children exposed to secondhand smoke are at an increased risk for sudden infant death syndrome(SIDS), acute respiratory infections, ear problems, severe asthma, and reduced lung function.

∙There is no safe level of exposure to secondhand smoke.

This decision is actually not new, but is an implementation of a decision made six years ago.  Here is the most recent opinion from a panel (consisting of judges Sentelle, Brown, & Silberman) of the D.C. Circuit, holding that the enactment of the Tobacco Control Act of 2009, which gave the FDA authority to regulate the tobacco companies, did not make the RICO case moot.  Thus, the opinion by Judge Brown sent the case back to Judge Kessler to get on with the companies’ self-flagellation.  Although Judge Brown’s opinion acknowledged that the remedy would involve speech — the order “to issue ’corrective statements’ in various media outlets about the health effects of smoking” — this opinion has no discussion of the First Amendment issues raised by such an order.

Given the 2006 law of the case and the 2012 go-ahead by the Circuit, Judge Kessler’s new order is thus not surprising.  But it is particularly interesting in the light of the decision of a different Brown panel (with judges Rogers & Randolph) this summer in another case, holding that the new FDA regulations, which required that the companies place particularly graphic warnings on cigarette packages, were “compelled speech” that violated the companies’ First Amendment rights.  There, Judge Brown wrote that, “Any attempt by the government either to compel individuals to express certain views, or to subsidize speech to which they object,  is subject to strict scrutiny.”

What’s the difference?  In one of the many trips the RICO case took to the D.C. Circuit, in 2009 another Brown panel (per curiam, with judges Sentelle & Tatel) held that the corrective statements sanction survived First Amendment scrutiny, as long as the statements were “purely factual and uncontroversial information,” which is distinct from the emotionally-charged (though factually accurate) photos that the FDA was trying to impose on the cigarette packages in 2012.

To improve the salience of their messages, companies often use emotional appeals when selling their products (think: bathtubs-in-a-field-of-flowers advertisements for Viagra).  I wonder if we will see this same distinction asserted against regulators who seek to constrain such emotional appeals, in order to facilitate more rational decision making by consumers.  It is odd to suppose that emotional appeals get more First Amendment protection than factual assertions.

Christopher Robertson is an associate professor at the James E. Rogers College of Law, University of Arizona and a research associate with the Edmond J. Safra Center for Ethics at Harvard Law School. This post first appeared at Bill of Health.

Share on Twitter

4 Responses for “Tobacco Companies Must Punch Selves in Face, Implement Court Orders”

  1. john says:

    Grrrr ….

    I’m pissed.

    Here’s a remedy I’d like to see. Have victims of smoking related cancers and their relatives write the warnings and require the tabacco companies to include a certain number of them on their packages.

    Here’s another. Require that companies mail information on the public related costs (deaths, cancers, names of victims, costs of treatment) to shareholders.

    Every quarter.

    And while I’m mad … Let’s publish the names of shareholders in the same way we out contributors to political campaigns …

  2. sm2012 says:

    For the non-lawyers of us, does this mean that only neutral factual anti-smoking information will be put out there or the emotional appeals as well?

  3. Hello, we found a bay chipmunk on our back steps laying on its side. not looking so good. it was on the steps for a few hours. cold. lethargic. we put in shoe box with a towel. had kitten baby bottle. mixed water and some sugar. he drank a little. can now walk a bit and can moove around a little. put warm water bottle in shoe box. will take a few drops of water at a time then stops. would like to bring in seems young.

  4. Grayce Bunge says:

    My dog dug up a baby mice nest yesterday. Two were still alive and separated this morning. I put them together in the nest I recreated but I don’t think the mother is coming back. Any hope for them? I tried giving them some water so far. Feel so bad!

Leave a Reply

MASTHEAD


Matthew Holt
Founder & Publisher

John Irvine
Executive Editor

Jonathan Halvorson
Editor

Alex Epstein
Director of Digital Media

Munia Mitra, MD
Chief Medical Officer

Vikram Khanna
Editor-At-Large, Wellness

Maithri Vangala
Associate Editor

Michael Millenson
Contributing Editor










About Us | Media Guide | E-mail | 415.562.7957 | Support THCB
© THCB 2005-2013
WRITE FOR US

We're looking for bloggers. Send us your posts.

If you've had a recent experience with the U.S. health care system, either for good or bad, that you want the world to know about, tell us.

Have a good health care story you think we should know about? Send story ideas and tips to editor@thehealthcareblog.com.

ADVERTISE

Want to reach an insider audience of healthcare insiders and industry observers? THCB reaches 500,000 movers and shakers. Find out about advertising options here.

Questions on reprints, permissions and syndication to ad_sales@thehealthcareblog.com.

THCB CLASSIFIEDS

Reach a super targeted healthcare audience with your text ad. Target physicians, health plan execs, health IT and other groups with your message.
ad_sales@thehealthcareblog.com
WORK FOR US

Interested in the intersection of healthcare, technology and business? We're looking for talented interns to work in our San Francisco offices. Get in touch.

Wordpress guru? We're looking for a part time web-developer to help take THCB to the next level. Drop us a line.

BLOGROLL

If you'd like to be considered for our Blogroll, drop us an email and we'll take a look. While you're at it, why not add us to yours?

SUPPORT
Let us know about a glitch or a technical problem.

Report spam or abuse here.

Sign up for the THCB Reader here.
Log in - Powered by WordPress.