Tobacco Firms Sue State Over Ads

Praising California’s aggressive anti-smoking advertisements as a model for the nation, Gov. Gray Davis condemned two leading tobacco companies Wednesday for filing a federal lawsuit to stop the campaign because it is too nasty.

“If big tobacco wants a fight, I say bring it on,” Davis said at a Capitol news conference.

In their lawsuit, filed Tuesday in Sacramento federal court, R.J. Reynolds Tobacco Co. and Lorillard Tobacco Co. accused California of violating their constitutional rights by using industry-funded advertisements to vilify tobacco companies and poison the minds of potential jurors in smoking-related cases.

“What this campaign does is vilifies and attacks -- at a very nasty, low, personal level -- the tobacco industry,” said Daniel W. Donahue, senior vice president and deputy general counsel for Reynolds, the second-largest U.S. tobacco company, based in Winston-Salem, N.C. “We have no opportunity to respond to that because you have the full weight of the state of California behind these untrue and false messages.”

The California suit is the latest legal counterattack by the tobacco industry in the face of increasingly negative anti-smoking advertisements and restrictive laws around the country. Lorillard made similar arguments in a Delaware lawsuit last year, accusing the National Assn. of Attorneys General of failing to take action against “vilifying” advertisements against the company.

The plaintiffs are asking for an injunction to prevent the state from running the ads.

“We don’t want any money,” Donahue said in a telephone interview. “We want an ad campaign that speaks to the health issues.”

Davis acknowledged that the campaign is “hard-hitting” but defended the billboards and print and broadcast advertisements as fair and highly effective. “Our response is we stand behind the ads,” said Davis. “They work.”

State health experts say that per capita tobacco consumption in California has declined by more than 60% from 2000 to 2002 and that Golden State smokers consume less than half the national average. Anti-smoking activists attribute both decreases to the advertising campaign.

Only about 16% of Californians smoke, down from 22% before the state started running anti-smoking ads in the late 1980s, said Davis.

The ads are produced by California’s Department of Health Services and are paid for by a 25-cent-per-pack state tax on cigarettes.

Reynolds and Lorillard contend that the state advertisements are violating the specified purposes of the 25-cent tax, which was approved by California voters in 1988 as Proposition 99. Reynolds and Lorillard are among contributors to the Cigarette and Tobacco Products Surtax Fund, which was established by the 1988 ballot initiative.

One of the six accounts within the fund is the Health Education Account, which was created to fund “programs for the prevention and reduction of tobacco use, primarily among children, through school and community health education programs.”

One advertisement that the companies cite in their suit is a 30-second television spot titled “Testifiers,” in which actors portraying tobacco executives are seen lying to questioners in regulatory hearings and press interviews. The ad ends with a box that appears on the screen, designed to look like the federally mandated warning label on a pack of cigarettes, with the message: “WARNING: Some people will say anything to sell cigarettes.”

In another TV ad, titled “Rain,” children are playing in a schoolyard as cigarettes rain from the sky. The children gaze up at the cigarettes with transfixed expressions as a voice says: “We have to sell cigarettes to your kids. We need half a million new smokers a year just to stay in business. So we advertise near schools, at candy counters; we lower our prices. We have to. It’s nothing personal. You understand.” The ad ends with a child catching a cigarette and starting to put it in his mouth, as a woman’s voice says: “The tobacco industry: How low will they go to make a profit?”

The companies allege the state is violating their 1st Amendment rights under the U.S. Constitution by forcing tobacco companies to pay for a campaign that is designed to destroy their reputation. They further contend that the state is denying their constitutional right to a fair trial by prejudicing jurors against tobacco companies. And they are alleging their due-process rights under the Constitution are being violated by the state’s failure to provide companies an opportunity to contest the accuracy of the ads.

Donahue said the ads would make it difficult, if not impossible, for tobacco companies to get a fair hearing in California courts. Reynolds, for example, is facing 40 smoking-related cases in California, and Donahue said previous surveys the company has conducted provide “empirical evidence” that potential jurors were negatively disposed toward tobacco companies as a result of the ad campaign.

Davis disputed the allegations. “Yes, these ads are tough,” he said. “But the research shows that the more aggressive the ads, the greater decline in the number of smokers. The purpose of these ads is to discourage smoking, save lives and save taxpayers of this state money.”

Barry Goode, the governor’s legal advisor, said the existing legal process provides adequate protections to tobacco companies by allowing judges and lawyers to question potential jurors about biases, and “every day, all over the state, they find fair jurors, impartial jurors.”

“I find it odd that Big Tobacco, who for years bragged about all their successes in court, never had a problem with tampering of jury pools, now finds the very ads we’ve been showing for 15 years might tamper with jury pools,” said Davis. “They spend infinitely more than we do to get their message out.”

In addition to the state, the lawsuit names three other defendants: the California Department of Health Services; Diana M. Bonta, the department’s director; and Dileep G. Bal, acting chief of the department’s Tobacco Control Section.

Bonta, a registered nurse, criticized the tobacco lawsuit at Wednesday’s Capitol press conference and described California as a national pioneer in anti-smoking efforts that are being emulated by many other states.