FTC Reviving RJR Ad Complaint : Ruling on ’85 Smoking Study Campaign to Be Reviewed

The Federal Trade Commission on Monday revived a complaint that a R. J. Reynolds Tobacco Co. advertisement in 1985 misrepresented the results of a government study on the effects of smoking on health.

In a 4-1 vote, the commission reversed a ruling made last August by an administrative law judge who had dismissed the complaint on grounds that the ad was an editorial and therefore was protected by First Amendment guarantees on freedom of speech.

Under Monday’s FTC order, Montgomery K. Hyun, the administrative law judge who dismissed the complaint, must reconsider his ruling in light of Supreme Court criteria on determining whether an advertisement is protected by the First Amendment, said Dee Ellison, an FTC spokeswoman.

Hyun must determine whether the five-member commission has jurisdiction in the case, Ellison said.

The FTC staff, in its original complaint filed in June, 1986, charged that R. J. Reynolds made false or misleading statements in an advertisement, “Of Cigarettes and Science,” which ran from March, 1985, to June, 1985, by stating that the study, “provided credible scientific evidence that smoking is not as hazardous as the public or the reader has been led to believe.”

The study, called Multiple Risk Factor Intervention Trial, or MR FIT, was conducted by the National Heart, Lung and Blood Institute of the National Institutes of Health, Ellison said.

The FTC complaint was based in part on the fact that “Reynolds failed to disclose in the ad that men in the study who quit smoking had a significantly lower rate of death from heart disease than men who continued to smoke,” Ellison said. “We charged that omission of that information made the ad deceptive.”

If the case is decided against Reynolds, the commission could bar the tobacco company from misrepresenting scientific studies but could not seek monetary penalties, Ellison said.

The company views it as a freedom of speech case.

Floyd Abrams, an attorney representing R. J. Reynolds, said the company “denies that it misrepresented the study. But the basic issue here is who should decide that, the government or the public as whole.”

“This advertisement is, in our view, protected by the same First Amendment rights as if it were written by anyone in the world,” Abrams said.

Abrams said that although R. J. Reynolds has not yet had a chance to review the entire ruling, it will consider all its legal options, including a possible appeal to the U.S. Court of Appeals in Washington, or asking the commission to stay further proceedings on issue.

Remanding the case to the administrative law judge, said Abrams, “is unnecessary and in flat violation of the First Amendment. One would not ask the writer of an Op-Ed piece why he wrote it.”

FTC Chairman Daniel Oliver cast the single dissenting vote on the case, agreeing with Reynolds that “it is critical for First Amendment purposes that the public, and not the government, decide the answer to this question.”

R.J. Reynolds, based in Winston-Salem, N.C., sells 20 brands of cigarettes and accounts for about one-third of the U.S. cigarette market, according to company statistics.