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Judges seem wary of overruling tobacco judgment

A bid by tobacco companies to overrule a court judgment that they must do corrective advertising about the dangers of smoking received a chilly response from a federal appeals court Friday.

The companies want U.S. District Judge Gladys Kessler's order overturned because a 2009 law gave the Food and Drug Administration authority over the industry, including power to require graphic cigarette warnings. In 2006, Kessler ruled that America's largest cigarette makers concealed the dangers of smoking for decades, in a civil case the government had brought under the Racketeer Influenced and Corrupt Organizations, or RICO law.

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

Judge David Sentelle, one of three judges on the appeals court panel, told a lawyer arguing for the tobacco companies that the logic in their case "escapes me."

"Your client is here because they didn't obey the law," he said.

The attorney, Miguel A. Estrada, argued that the companies couldn't violate the law even if they wanted to, because of the oversight authority that the FDA now has under the 2009 Family Smoking Prevention and Tobacco Control Act. He used an analogy of a car thief who is placed under house arrest, and so is prevented from engaging in the criminal behavior.

But Judge Laurence H. Silberman, like Sentelle an appointee of Republican President Ronald Reagan, had a quick rejoinder, wondering if "there's evidence you've broken out of your house."

Estrada said that even if one assumed the tobacco companies were run by "black-hearted people," they won't have an opportunity to violate the law now.

In a separate case, some of the tobacco companies in this case — although not Philip Morris — are challenging the 2009 law's authority for the FDA to require the companies to use graphic cigarette warning labels.

The nine graphic warnings proposed by the FDA include color images of a man exhaling cigarette smoke through a tracheotomy hole in his throat, and a plume of cigarette smoke enveloping an infant receiving a mother's kiss. A federal judge in Washington has ruled the FDA's proposed warnings violate First Amendment free speech protections and he has blocked their implementation. That case has been appealed to the U.S. Circuit Court of Appeals for the District of Columbia, the same court from which the three-judge panel in Friday's case was drawn.

Sentelle told the tobacco lawyer that the companies are trying to get rid of the very law that they've cited in this case. And he noted that the 2009 legislation specifically says that nothing in the law should be construed to affect any action pending in court.

Kessler, the judge who ruled against the tobacco companies, has said she wants the industry to pay for broadcast and print ads, but has not said what corrective statements should be included in them. The government wants the companies to admit that they lied to the public about the dangers of smoking and to pay for an advertising campaign of self-criticism. The companies have argued the statements are inflammatory, inaccurate and "designed solely to shame and humiliate" the companies.

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.

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Follow Fred Frommer on Twitter: http://twitter.com/ffrommer

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