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Court leaves ruling against big tobacco intact

By Pete Yost

The Associated Press

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WASHINGTON (AP) — A federal appeals court on Friday left intact a court judgment that ordered tobacco companies to do corrective advertising about the dangers of smoking.


The companies sought to overturn a federal judge's order on grounds that the order had been superceded by a 2009 law that gave the Food and Drug Administration authority over the industry, including power to require graphic cigarette warnings.

In court filings, the companies — including Philip Morris USA, the nation's largest tobacco maker — say that the 2009 Tobacco Control Act eliminated any reasonable likelihood that the companies would commit future violations, thus making the need for remedies like corrective statements moot.

In a 3-0 decision, the appeals court said the regulatory oversight provided by the 2009 Tobacco Control Act is not a replacement for the judge's ruling on corrective advertising.

The appeals court supported a lower court decision by U.S. District Judge Gladys Kessler that if the companies were not deterred by the possibility of court-imposed action, they were not likely to be deterred by the 2009 Tobacco Control Act either.

In 2006, Kessler ruled that America's largest cigarette makers concealed the dangers of smoking for decades, in a civil case the federal government brought under the Racketeer Influenced and Corrupt Organizations law, or RICO.

Even if Kessler had found that the companies were likely to comply with the Tobacco Control Act, the court-imposed requirements would not have been moot, wrote appeals court Judge Janice Rogers Brown. The court-imposed injunctions, unlike the Tobacco Control Act, "are specifically designed to combat racketeering activity," Brown pointed out.

Brian May, a spokesman for Philip Morris USA, said the company is disappointed by the appeals court ruling.

Judge Brown is an appointee of former President George W. Bush. The other two members of the panel, Chief Judge David Sentelle and Laurence Silberman, were appointed by President Ronald Reagan.

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, N.C.

In a separate decision, the appeals court refused to take up a tobacco industry challenge to one of Kessler's orders that the companies disclose marketing data to the government.

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Associated Press writer Michael Felberbaum contributed to this story.

Bless your heart
Bless your heart