Judge won't delay decision in tobacco case

RICHMOND — A federal judge on Thursday said she won't delay an order in a 12-year-old lawsuit against the tobacco industry while other courts decide newer cases challenging tobacco marketing restrictions and graphic cigarette warning labels.

U.S. District Judge Gladys Kessler in Washington issued the decision in a case in which America's largest cigarette makers — including Philip Morris USA, maker of top-selling Marlboro cigarettes — were found to have concealed the dangers of smoking for decades.

Kessler has said she wants the industry to pay for ads, in broadcast and print. She has not said what corrective statements should be included in those ads, where they must be placed or for how long. That's the decision Kessler was considering delaying.

She asked the parties last November for input on whether she should delay her decision pending other lawsuits challenging marketing restrictions and new warning labels that the Food and Drug Administration proposed under authority it gained in 2009.

Kessler said that the corrective advertising that the Justice department wants the industry to pay for under a 2006 ruling is "significantly different from the verbal and pictorial advertisements" required by the FDA. She also noted that tobacco companies have brought two newer challenges to regulations the FDA proposed using its new authority.

In her decision Thursday, Kessler wrote: "It is perfectly clear" that the challenges to the FDA regulations "will not end (if ever) for an extremely long period of time."

The tobacco companies wanted Kessler to delay her decision because the government's proposed corrective statements would likely be subject to many of the same objections raised in newer challenges to federal tobacco regulations. Meanwhile, the Justice Department argued that postponing a decision would harm smokers, potential smokers and young people.

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. Its proposed corrective ads would cover the addictiveness of nicotine, the lack of health benefits from "low tar," "ultra-light" and "mild" cigarettes and the dangers of secondhand smoke. The companies have argued the statements are inflammatory, inaccurate and "designed solely to shame and humiliate" the companies.

The FDA's new marketing restrictions include cigarette warning labels featuring images of a man exhaling cigarette smoke through a tracheotomy hole in his throat, the corpse of a dead smoker, diseased lungs and a smoker wearing an oxygen mask.

Tobacco companies are increasingly relying on packaging to build brand loyalty and grab consumers. It's one of the few advertising venues left after the government curbed their presence in magazines, and on billboards and TV. The companies have said the new graphic labels could cost them millions of dollars in lost sales and increased packaging costs.

Last November a federal judge blocked the requirement that would have forced tobacco companies to put the images on their cigarette packages and in advertisements starting in September. That decision is being appealed and other parts of the case are still pending.

Another case the tobacco companies filed over the marketing restrictions is pending before the U.S. 6th Circuit Court of Appeals in Cincinnati after a judge in Kentucky upheld most of the marketing restrictions.

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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Michael Felberbaum can be reached at http://www.twitter.com/MLFelberbaum.