Federal Judge to Decide Whether Stores Should Issue Tobacco Apology

Menthol cigarettes are seen for sale on a shelf at a Quick Stop store in Miami, Florida. (2010 Getty Images)

Smokers may soon be receiving a free apology from Marlboro man.

A recent ruling stating that the nation’s largest tobacco companies lied about the dangers of smoking left open the possibility that retailers could be required to post large displays with the mea culpa.

Retail trade groups are upset about the possibility the displays would commandeer their most valuable selling space and imply their own guilty-by-association.

As part of a case the government brought in 1999, U.S. District Judge Gladys Kessler last month ordered tobacco companies to pay for corrective statements on cigarette packs, in print and on TV, radio and the Internet. The statements must also include smoking’s health effects, including the death on average of 1,200 people a day.

According to the American Lung Association, Cubans were noted for having the highest rates for smoking, followed by Mexican-Americans. The lowest rates were among Dominicans. However, Puerto Rican women are nearly twice as likely to smoke as women of other Hispanic groups.

While retail trade groups argue the move would infringe on their First Amendment and property rights, public health organizations say tobacco companies have long used retail displays for deceptive marketing. They also insist retailers serve as an important place to communicate the public confession.

“It’s just a vital location for these corrective statements so that youth and others who are going to buy cigarettes see (them),” said Howard Crystal, an attorney who represented several public health groups, including the American Cancer Society, the American Lung Association and the Campaign for Tobacco-Free Kids.

In the original 2006 ruling, the judge noted that retail stores have become one of the "central vehicles for communication of brand imagery and promotional offers" and "create tobacco friendly environments containing enticing displays, competitive prices, and visible point-of-sale advertising." An appeals court sent the ruling back to the lower court to decide how to better address the rights of stores that sell tobacco products.

Nearly 40 percent of U.S. convenience stores' $190 billion in annual sales comes from tobacco products, according to the National Association of Convenience Stores.

Retailers who refuse to put up the signs could lose millions they receive from tobacco companies under agreements that give stores rebates to help lower cigarette prices and payments for prominently displaying products.

"You can't take up valuable selling space and impact my bottom line to achieve your goal of having these corrective statements out there," said Andy Kerstein, president of the National Association of Tobacco Outlets, which represents about 20,000 tobacco stores, convenience stores and other stores that sell tobacco.

Retailers estimate the industry could lose $82 million per year in sales for every square foot of counter space taken up by the signs. The public health groups, however, said that would average out to only about 65 cents per day per retailer, according to court filings.

Based on reporting by the Associated Press.