According to the deal, each company must publish full-page ads in the Sunday editions of 35 newspapers and on the newspapers' websites, as well as run TV spots in prime time on CBS, ABC or NBC five times per week for a year. Every corrective ad will begin by reminding the public that a federal court concluded that the companies "deliberately deceived the American public."
The statements themselves will then say that smoking kills more people than homicides, AIDS, suicide, drugs, car crashes and alcohol combined; that "secondhand smoke kills over 38,000 Americans a year"; that the industry "intentionally designed cigarettes to make them more addictive"; and that nicotine "changes the brain," making it harder to quit." Not unexpectedly, the cigarette makers originally opposed this requirement, arguing that the statements amounted to "forced public confessions"
The judge disagreed, writing that the case "is about an industry, and in particular these Defendants, that survives, and profits, from selling a highly addictive product which causes diseases that lead to a staggering number of deaths per year, an immeasurable amount of human suffering and economic loss, and a profound burden on our national health care system. Defendants have known these facts for at least 50 years or more. Despite that knowledge, they have consistently, repeatedly, and with enormous skill and sophistication, denied these facts to the public, to the Government, and to the public health community... In short, Defendants have marketed and sold their lethal products with zeal, with deception, with a single-minded focus on their financial success, and without regard for the human tragedy or social costs that success exacted."
The public confessions, known in legal circles as corrective advertising, grew out of a massive racketeering law suit triggered by a lengthy legal memorandum submitted to the government by
Moreover, in an interesting coincidence, the remedy chosen here by the judge - requiring so-called corrective statements - was first developed and obtained legal approval in a deceptive advertising proceeding before the Federal Trade Commission [FTC] initiated by the same law professor.
The lengthy memorandum outlining the legal theories under which the federal government could sue the major tobacco companies, using a federal statute charging them with being racketeers [RICO], originated with Banzhaf.
He had asked an antismoking colleague, Clifford Douglas, to engage in the necessary legal research, and then provided it to U.S. Senator Richard Durbin who passed it along to the Justice Department. The law suit was ultimately successful, and the corrective statements are one of the remedies ordered by Judge Gladys Kessler of U.S. District Court of the District of Columbia.
However, the concept of ordering companies, which had engaged in deceptive practices, to confess to the public that they lied in the past goes back much further to 1970.
In a legal proceeding at the FTC involving Campbell Soup, law students under Professor Banzhaf's direction persuaded the agency for the first time that it had the legal authority to order corrective advertising.
The agency reconfirmed that legal authority in a subsequent proceeding involving Firestone tires - incidentally, a proceeding which also first established the agency's authority to pay the expenses of intervenors like Banzhaf's law students - and was applied in many proceedings which followed. Some of these instances are cited by the judge in upholding this unusual remedy.
"It's very satisfying, at a time when so many people criticize law professors for teaching only theory and not practice, and for doing little more than writing increasingly useless and irrelevant law review articles, to be able to point to important public health accomplishments from their efforts in the real world, victories expected to save lives by helping to persuade youngsters not to take up smoking," suggests Banzhaf.
Prof. Banzhaf also brought legal actions which led to the first dramatic decline in cigarette consumption, the ban on cigarette commercials, started the modern nonsmokers' movement which is banning smoking in so many places, helped to kill off Joe Camel and cigarette billboards, supported other law suits against the tobacco companies which led to billion-dollar verdicts, etc.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
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GWU Law School
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GWU Law School
202 994-7229 / 703 527-8418