In a press release issued this past Tuesday, the Campaign for Tobacco-Free Kids attacked the tobacco companies for pursuing or supporting litigation against the American Legacy Foundation which claims that some of its "truth" campaign advertisements have violated the terms of the Master Settlement Agreement (MSA) by "vilifying" the tobacco companies, something that is prohibited by the agreement.
Lorillard Tobacco Company earlier filed suit to shut down the "truth" campaign because of what it alleges is a violation of the "vilification" clause in the MSA. On March 3, Philip Morris and R.J. Reynolds sought to be recognized in the lawsuit for the purpose of filing amici curiae briefs in support of Lorillard's appeal to the Delaware Supreme Court (the Delaware Chancery Court has rejected Lorillard's claim).
According to the Campaign for Tobacco-Free Kids' press release, this action by the tobacco companies "show they haven't changed and still want kids to smoke."
The release states: "The tobacco companies claim that they have changed their ways and do not want kids to smoke, but their actions continue to tell a different story. ... their effort to shut down the truth® campaign shows again that they remain the main cause of the problem and diehard opponents of policies and programs that actually reduce tobacco use. ... It is critical that the American Legacy Foundation prevail in the Delaware Supreme Court so that it can maintain its independence and continue to run hard-hitting advertising proven effective at preventing kids from smoking. The fact that Philip Morris, RJR, and Lorillard are all seeking to stop Legacy's successful efforts to reduce youth smoking is further proof that Big Tobacco has not changed."
The Rest of the Story
While I support the "truth" campaign and agree that anti-smoking media campaigns are critical in the effort to prevent smoking, and while I agree that the tobacco companies have largely not changed and still do want kids to smoke, I do not find this particular action by the tobacco companies to be evidence that they haven't changed and still want kids to smoke.
After all, the states signed a contract agreeing not to vilify the tobacco companies in the Legacy advertisements and the tobacco companies have every right to attempt to enforce that contract. If the complaint were completely frivolous, then I might agree that it was merely a thinly-veiled attempt to try to shut down the operation. But the complaint is not at all frivolous; I think it is a legitimate question of interpretation that deserves to be resolved. I think that the tobacco companies have a right to make sure that the states are living up to their part of the contract.
The background to the lawsuit is as follows: Lorillard (maker of Newport, among other cigarette brands), has sued the American Legacy Foundation for violating the terms of the Master Settlement Agreement through its "truth" anti-smoking campaign. Specifically, Lorillard contends that the "truth" campaign ads violate the anti-vilification clause of the settlement agreement (section VI[h]), which states that: "The National Public Education Fund shall be used only for public education and advertising regarding the addictiveness, health effects, and social costs related to the use of tobacco products and shall not be used for any personal attack on, or vilification of, any person (whether by name or business affiliation), company, or governmental agency, whether individually or collectively."
The Campaign for Tobacco-Free Kids would have us believe that Lorillard's invocation of the anti-vilification clause (and the support of Lorillard's claim by Philip Morris and R.J. Reynolds) is simply an attempt to intimidate Legacy under the guise of anti-vilification provisions. But is that the case? Or is there a legitimate argument that could be made that the anti-vilification clause raises a legitimate legal question that warrants a judicial interpretation?
Here, a careful reading of the anti-vilification provision is critical. The clause states that the Foundation's ads must not make "any personal attack on, or vilification of, any person (whether by name or business affiliation), company, or governmental agency, whether individually or collectively." To vilify is defined as either "to lower in estimation or importance" or "to utter slanderous and abusive statements against."
While I personally would not interpret the anti-vilification clause in such a way that it would lead to a conclusion that some of the "truth" campaign ads have violated the provision, I do have to admit that it does not seem unreasonable to argue that some of the ads do attempt to lower the public's estimation of the tobacco companies. So I think the significant legal question for a court to determine is whether the definition of "vilify" would fall under the first (more general) or second (more specific) definition above. Under the first definition, it may not be unreasonable to interpret the MSA in such a way that the "truth" campaign ads represent a violation of the clause. Under the second definition, the "truth" campaign is home-free.
The problem is that it is not up to me to decide how to interpret the MSA. The relevant question is really whether there is a legitimate potential legal argument that the ads could violate the MSA, such that a court's hearing of the issue becomes essential for the tobacco company's interest in pursuing legal enforcement of the binding contract that both parties are subject to. And I think because there is at least the possibility of a more general interpretation of the anti-vilification clause, a lawsuit on this basis is not frivolous, but is within the realm of reason.
I therefore am not persuaded by the Campaign's press release. If anything, I think that it is in the best interests of the public's health in the long run to defend the legal system and the opportunity for parties to pursue justice under the laws of our nation. To cut off or restrain the legal ability of the tobacco companies to seek justice under a contract that is legally binding, just because the companies are very bad and we are very good, does not advance the overall interests of public health in the long run. And, frankly, I think it may violate legitimate legal rights of the tobacco companies. Yes, I do think that all entities in our society do have certain legal rights that cannot be stripped away simply on the basis of their being faulty in intention or action.
Thus, while I disagree with much of what the tobacco companies are doing, I think here they are exercising a legitimate right to seek a judicial interpretation of the binding contract they the states have signed, in which they may have agreed not to put out ads that lower in estimation or importance the tobacco companies (which the "truth" ads are certainly, and appropriately, doing).
The blame here lies not with the tobacco companies, but with the Attorneys General who signed this damaging contract in the first place. They were not required to include an anti-vilification clause in the contract. They had the option of telling the tobacco companies: "either you allow us to run the campaign how we think it should be run or forget the deal - we'll continue to fight you in the courtroom."
But they chose not to. They chose, instead, to compromise the potential effectiveness of what is arguably the key element of the Master Settlement Agreement by giving the tobacco companies a huge legal avenue to pursue exactly what they are exercising their rights to pursue. This all could have been foreseen (and was in fact foreseen) in November 1998.
There is no mystery here. No one who read the contract had any doubt that the tobacco companies were going to invoke the anti-vilification clause. And there was no doubt that the purpose of the anti-vilification clause was to give the tobacco companies an opportunity to try to prevent the hard-hitting ads that the "truth" campaign has put out.
The Tobacco Control Resource Center, in its March 1999 analysis of the MSA, concluded that the anti-vilification clause "appears to encompass 'personal' attacks or vilification of the tobacco industry (by virtue of the words 'company' and 'collectively') [and] could censor the most effective of state and local advertising and education campaigns."
And in answer to its question of "Will this 'no tobacco industry attacks' provision inhibit the development of and funding of effective counter advertising campaigns?" the analysis concluded: "Yes, to the extent states and localities depend on NPEF funds from the MSA to mount such campaigns. Counter-advertising campaigns that expose tobacco industry manipulation are among the most effective strategies for reaching target audiences and reducing tobacco consumption."
So it was clearly the expert opinion of top attorneys from within the tobacco control movement that the anti-vilification clause might reasonably be interpreted by the courts as precluding the very type of advertisements (exposing tobacco industry manipulation of youths) that the "truth" campaign has been running.
I'm not arguing here that the Tobacco Control Resource Center provided any definitive answer as to whether the "truth" ads violate the anti-vilification clause; I'm simply making the point that the tobacco companies' claim is a legitimate, rather than a frivolous one.
Perhaps what bothers me most about the Campaign's press release is that I feel it again (the Campaign's arguments in support of monetary remedies in the DOJ case being the first example) demonstrates a lack of regard for the rule of law.
Yes - it is in the best interests of the public's health to allow Legacy to run these ads. Yes - the tobacco industry should, if its primary concern were the public's health, abdicate its legal right to challenge the ads.
But should we not have some respect for the law? The states signed a contract and they are obligated to live by that contract. In fact, it was the Attorneys General - the chief law enforcement officers of the states - that signed the contract. They, if anyone, should have an overriding concern for following the rule of law.
It's clear to me that many anti-smoking groups are refusing to acknowledge that the MSA is a legal contract. They seem to be treating it as if it is some public health resolution by which the tobacco companies agreed to work to protect the public's health. Let's make no mistake about it. The MSA is not a public health resolution. It is a legal contract entered into voluntarily by the parties. And just as it is reasonable for the states to file suit against the companies for violating provisions of the MSA, it is also reasonable for the companies to file suit against the states for violating provisions of the MSA, as long as the legal claims are not frivolous.
Don't get me wrong. I am in no way arguing that the "truth" campaign ads violate the anti-vilification clause of the MSA. I think it is very possible that the more specific interpretation of the provision may carry the day. But I see nothing wrong with the tobacco companies exercising their right to enforce the provisions of the contract, especially since their claim is certainly not a frivolous one.
As a movement that relies upon the force of law to achieve perhaps the majority of objectives in promoting the public's health, I think it is time to demonstrate a little more respect for the law. And to hold ourselves a little more accountable for legally binding agreements that we make.
Yes - let's defend Legacy vigorously in the courtroom. Let's convince the judge that a more specific interpretation of the word "vilify" is what the signatories to the MSA had in mind. But let's not pretend that the contract is a one-way agreement whose provisions only we, as the good guys, can enforce.
In the long run, I think this approach is degrading to the integrity of our legal system - let's show the utmost respect for the opportunity for parties to seek justice under our legal system. After all, we have $145 billion resting on that principle.