Expect about a year’s worth of new anti-tobacco messaging on television and in the newspaper as the result of a recent Consent Motion in United States v. Philip Morris USA Inc., et al., No. 1:99-cv-02496 (D.D.C.).

Over eighteen years ago, on September 22, 1999, the federal government filed this case under the Racketeer Influenced and Corrupt Organizations (“RICO”) Act. The trial court eventually found for the federal government in 2006, ordering (among other remedies) that Defendants issue “Corrective Statements” regarding previous representations as to their products. Further trial and appellate litigation followed over (among other things) these Corrective Statements, eventually leading to the Consent Motion filed earlier this week. With the Consent Motion, the parties included a proposed Consent Order that would begin the Corrective Statements’ through television and newspaper advertisements.

Signing onto the proposed Consent Order were representatives of the United States; several anti-tobacco advocacy and public-health groups that had intervened in the case; Altria Group, Inc., and Philip Morris USA Inc.; R.J. Reynolds Tobacco Co. (individually, as successor by merger to Brown & Williamson Tobacco Corp., and as successor to Lorillard Tobacco Co.); ITG Brands, LLC; Commonwealth Brands, Inc.; and Commonwealth-Altadis, Inc.

The proposed Consent Order anticipates that Defendants will run these Corrective Statements as television spots and on full pages of major newspapers. Should the Court approve the proposed Consent Order and enter it by October 13, 2017, “the Corrective Statements will generally begin to appear in newspapers Sunday, November 26, and on television the following week.”

Television

  • “Each Defendant will place the Corrective Statements . . . on its choice of the three major television networks – CBS, ABC, or NBC.”
  • Under appropriate circumstances, other networks may be chosen to run a portion of a Defendant’s Corrective Statements.
  • “The TV spots will run a total of five times per week, subject to the availability of network time and upon approval of the network(s) on which the spots will air.”
  • “The five TV spots to be run each week will be run by each Defendant at its choice between 7:00 p.m. and 10:00 p.m. in the time zone in which the spot airs, between Monday and Thursday, for one year.”
  • “In the event that lack of availability of network time precludes Defendants from purchasing all spots within the one-year period, Defendants will continue to purchase spots until they have run each Corrective Statement at least 50 times and have run a total of 260 spots.”

Newspaper

  • The newspaper statements will appear in major city papers throughout the United States.
  • Defendants “will purchase a full newspaper page in the first section of the Sunday edition.”
  • Similar statements will appear in online editions of the newspapers.
  • Each will follow a specific schedule as set out in the proposed Order.

The parties continue working on a resolution of proposed Corrective Statements on Defendants’ packaging onserts and on their company websites.

Of note, the trial court originally ordered additional Corrective Statements on in-store advertising; however, the impact on nonparty retailers led to this aspect’s reversal on appeal.