WASHINGTON -- A federal appeals court on Monday signaled it may scale back a judge's order requiring tobacco companies to say in product warnings that the industry deceived the American public about the dangers of smoking, said a Dow Jones report.
The product warnings are one of the requirements U.S. District Judge Gladys Kessler placed on the industry after she ruled that cigarette makers committed civil racketeering violations by engaging in a decades-long scheme to mislead the public.
Kessler required the tobacco companies to make the product warning statements in newspaper and TV ads, as well as on their websites and product packaging. She initially ruled against the tobacco industry in 2006, triggering a series of appeals. Since 2012, the two sides have been fighting over the content of the advertising warnings.
If the appeals court finds that parts of the warnings go too far, the ruling could further delay a final resolution of the case, which dates back to a U.S. Department of Justice lawsuit filed in 1999.
During oral arguments, a three-judge panel on the U.S. Court of Appeals for the District of Columbia Circuit made clear some of the cigarette makers' legal attacks against the product warnings were likely to fail.
For example, the court suggested Kessler was on solid ground when she ordered the tobacco companies to say they "intentionally designed cigarettes with enough nicotine to create and sustain addiction."
D.C. Circuit Judge David Tatel noted an earlier ruling from his court in the case said the tobacco companies could be ordered "to reveal the previously hidden truth" about their products.
But Tatel expressed reservations about Kessler's decision to force that tobacco companies to disclose in the warnings they had deliberately deceived the public. "That's different than focusing on the product," he said.
Lawyer Miguel Estrada, representing Philip Morris USA, R.J. Reynolds Tobacco Co. and Lorillard Tobacco Co., said the cigarette makers "stand ready to disseminate truthful, factual information about the health effects of their products." But he argued the wording of Kessler's product warnings was designed to punish and stigmatize the companies. He said it would violate the First Amendment to force his clients to publicly brand themselves as wrongdoers.
Justice Department lawyer Melissa Patterson responded that when courts or federal agencies find that defendants have engaged in wrongdoing, it is fine in some circumstances to require them to disclose those findings. "This is hardly unprecedented," she said.
Patterson said Kessler wasn't trying to humiliate the tobacco companies and instead was focused on making sure the product warnings would be effective in countering tobacco-company efforts to mislead consumers.
Two other judges on Monday's panel were less active in their questioning than Tatel, said the report. But Judge Harry Edwards sent clear signals that he was skeptical of the tobacco companies' arguments, while Judge A. Raymond Randolph was more skeptical of the government.
A ruling is expected in the coming months.
The D.C. Circuit in 2009 ruled that Kessler could force the tobacco companies to make "corrective statements" about their products. The appeals court's prior opinion said the corrective warnings had to be confined to purely factual and uncontroversial information.
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