Lorillard Files Proposed Corrective Statements

October 18, 2006 2:50 am by Gene Borio

The following statement is made by Lorillard Tobacco Company pursuant to a Court Order in United States of America, et al. v. Philip Morris USA, Inc., et al., Civil Action No. 99-2496 (GK) (Order #1015, Aug. 17, 2006, at 4; Final Op. at 1636) (on appeal).

The Surgeon General has concluded:

The evidence is sufficient to infer a causal relationship between exposure to secondhand smoke and sudden infant death syndrome; and a lower level of lung function during childhood.

The evidence is sufficient to infer a causal relationship between maternal exposure to secondhand smoke during pregnancy and a small reduction in birth weight; and persistent adverse effects on lung function across childhood.

The evidence is sufficient to infer a causal relationship between secondhand smoke exposure from parental smoking and lower respiratory illnesses in infants and children; middle ear disease in children, including acute and recurrent otitis media and chronic middle ear effusion; cough, phlegm, wheeze, breathlessness and ever having asthma among children of school age; and the onset of wheeze illnesses in early childhood.

The evidence is sufficient to infer a causal relationship between exposure to secondhand smoke and lung cancer among lifetime nonsmokers; increased risks of coronary heart disease morbidity and mortality among both men and women; odor annoyance; nasal irritation; atherosclerosis in animal models; endothelial cell dysfunctions; a prothrombotic effect; and tumors in laboratory animals.

These conclusions are contained in the 2006 Surgeon General’s Report. Lorillard encourages consumers to rely upon the conclusions of the Surgeon General in making decisions about smoking.

Text of:

Lorillard Correctives, October 16, 2006

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

Plaintiff,

And

TOBACCO-FREE KIDS ACTION FUND,

et. al.,

v.

PHILIP MORRIS USA INC. (f/k/a PHILIP MORRIS INCORPORATED), et al.,

Defendants.

Civil Action No. 99-CV-2496 (GK)

Next Scheduled Court Appearance: None

LORILLARD TOBACCO COMPANY’S PROPOSED CORRECTIVE STATEMENTS REQUIRED BY ORDER #1015

This Court’s August 17, 2006 Final Judgment and Remedial Order (“Order”) states that “[e]ach Defendant shall be required to make separate corrective statements about: (a) the adverse health effects of smoking; (b) the addictiveness of smoking and nicotine; (c) the lack of any significant health benefit from smoking ‘low tar,’ ‘light,’ ‘ultra light,’ ‘mild,’ and ‘natural,’ cigarettes; (d) Defendants’ manipulation of cigarette design and composition to ensure optimum nicotine delivery; and (e) the adverse health effects of exposure to secondhand smoke (also known as environmental tobacco smoke, or ETS).” Order at II.B.5. The Order further requires that each party “submit a proposal for the exact wording of such statements, with any supporting materials deemed necessary.” Order at II.B.5. In its Final Opinion, the Court noted parenthetically the nature of the content that it would require for each of the statements. See Final Op. at 1636-37.

In light of the Court’s Order, and the notations in the Final Opinion, Lorillard Tobacco Company (“Lorillard”) submits the following proposed corrective statements and supporting materials.1


I. Proposed Statements

A. Adverse Health Effects of Smoking

The following statement is made by Lorillard Tobacco Company2 pursuant to a Court Order in United States of America, et al. v. Philip Morris USA, Inc., et al., Civil Action No. 99-2496 (GK) (Order #1015, Aug. 17, 2006, at 4; Final Op. at 1636) (on appeal).

The Surgeon General has concluded that the evidence is sufficient to infer a causal relationship between cigarette smoking and the following:

Bladder cancer, cervical cancer, cancers of the esophagus, renal cell and renal pelvis cancers, cancer of the larynx, acute myeloid leukemia, lung cancer, cancers of the oral cavity and pharynx, pancreatic cancer, gastric cancers, abdominal aortic aneurysm, subclinical atherosclerosis, stroke, coronary heart disease, chronic obstructive pulmonary disease morbidity and mortality, acute respiratory illnesses, including pneumonia, in persons without underlying smoking-related chronic obstructive lung disease, impaired lung growth during childhood and adolescence, early onset of lung function decline during late adolescence and early adulthood, respiratory symptoms in children and adolescents, including, coughing, phlegm, wheezing, and dyspnea, asthma-related symptoms (i.e., wheezing) in childhood and adolescence, premature onset of and an accelerated age-related decline in lung function in adults, all major

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1 This submission is made subject to and without waiving Lorillard’s objections to the Court’s Order requiring corrective statements on each of the five subjects identified above. Lorillard continues to object to the corrective statements remedy for reasons set forth in Joint Defendants’ Proposed Findings of Fact, and the Corrected Post Trial Brief of Joint Defendants, that the corrective statements remedy is not supported by the factual record and the law. Lorillard also objects to the imposition of the corrective statements remedy, because in the remedies expert disclosures required under Order 894, the government did not disclose its intent to seek corrective statements, and did not elicit testimony from those experts in support of the specific remedies it proposed. Moreover, even when, after the trial, the Government disclosed its intent to seek specific corrective statements, it did not seek a corrective statement concerning alleged “nicotine manipulation.” Thus the Court failed to hold an evidentiary hearing as required under United States v. Microsoft, 253 F.3d 34 (D.C. Cir. 2001). Lorillard has appealed and both its appeal and its motion for stay of the judgment await resolution by the D.C. Circuit. This submission is made pursuant to the Court’s Order and its directives regarding the required content of the proposed corrective statements, and nothing in this submission is intended to waive Lorillard’s objections to the corrective statements remedy, or to the final content of any required statements, whatever they may be. 2 This Court’s Final Judgment and Remedial Order provides: “The statements shall identify the Defendant making the corrective statements.” Order at II.B.7.c. Lorillard specifically objects to such attribution, but has included it pursuant to the Court’s Order.

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respiratory symptoms among adults including coughing, phlegm, wheezing, and dyspnea, poor asthma control, nuclear cataract, diminished health status that may manifest as increased absenteeism from work and increased use of medical care services, increased risks for adverse surgical outcomes related to wound healing and respiratory complications, hip fractures, low bone density in postmenopausal women, peptic ulcer disease in persons who are Helicobacter pylori positive, and periodontitis.3 The Surgeon General has also concluded that the evidence is sufficient to infer a causal relationship between maternal smoking during pregnancy and the following:

Fetal growth restrictions and low birth weight, premature rupture of the membranes, placenta previa, placental abruption, and preterm delivery and shortened gestation.

The Surgeon General has also concluded that the evidence is sufficient to infer a causal relationship between maternal smoking during and after pregnancy and sudden infant death syndrome.

These conclusions are contained in the 2004 Surgeon General’s Report. Lorillard encourages consumers to rely upon the conclusions of the Surgeon General in making decisions about smoking.

B. Addictiveness of Smoking and Nicotine

The following statement is made by Lorillard Tobacco Company pursuant to a Court Order in United States of America, et al. v. Philip Morris USA, Inc., et al., Civil Action No. 99-2496 (GK) (Order #1015, Aug. 17, 2006, at 4; Final Op. at 1636) (on appeal).

The Surgeon General has concluded:

Cigarettes and other forms of tobacco are addicting. Nicotine is the drug in tobacco that causes addiction.

These conclusions are contained in the 1988 Surgeon General’s Report. Lorillard encourages consumers to rely upon the conclusions of the Surgeon General in making decisions about smoking.

C. “Low-Tar” and “Lights” Descriptors

The following statement is made by Lorillard Tobacco Company pursuant to a Court Order in United States of America, et al. v. Philip Morris USA, Inc., et al., Civil Action No. 99-2496 (GK) (Order #1015, Aug. 17, 2006, at 4; Final Op. at 1636-37) (on appeal).

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3 The Surgeon General’s Report includes both specific and general characterizations of the diseases and adverse health effects found to be caused by smoking. Lorillard’s proposed statement utilizes the more specific characterizations of each disease or adverse health effect.

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The Surgeon General has concluded: Smoking cigarettes with lower machine-measured yields of tar and nicotine (including those that have been labeled “low tar,” “light,” “ultra light, “mild” and “natural”) provides no clear benefit to health in comparison to smoking cigarettes with higher machine-measured yields of tar and nicotine. This conclusion is contained in the 2004 Surgeon General’s Report. Lorillard encourages consumers to rely upon the conclusions of the Surgeon General in making decisions about smoking.

D. Nicotine Manipulation

The following statement is made by Lorillard Tobacco Company pursuant to a Court Order in United States of America, et al. v. Philip Morris USA, Inc., et al., Civil Action No. 99-2496 (GK) (Order #1015, Aug. 17, 2006, at 4; Final Op. at 1636) (on appeal).

Cigarette manufacturers “controlled the amount and form of nicotine delivery in their commercial products by controlling the physical and chemical make-up of the tobacco blend and filter.”

E. Environmental Tobacco Smoke

The following statement is made by Lorillard Tobacco Company pursuant to a Court Order in United States of America, et al. v. Philip Morris USA, Inc., et al., Civil Action No. 99-2496 (GK) (Order #1015, Aug. 17, 2006, at 4; Final Op. at 1636) (on appeal).

The Surgeon General has concluded:

The evidence is sufficient to infer a causal relationship between exposure to secondhand smoke and sudden infant death syndrome; and a lower level of lung function during childhood.

The evidence is sufficient to infer a causal relationship between maternal exposure to secondhand smoke during pregnancy and a small reduction in birth weight; and persistent adverse effects on lung function across childhood.

The evidence is sufficient to infer a causal relationship between secondhand smoke exposure from parental smoking and lower respiratory illnesses in infants and children; middle ear disease in children, including acute and recurrent otitis media and chronic middle ear effusion; cough, phlegm, wheeze, breathlessness and ever having asthma among children of school age; and the onset of wheeze illnesses in early childhood.

The evidence is sufficient to infer a causal relationship between exposure to secondhand smoke and lung cancer among lifetime nonsmokers; increased risks of coronary heart disease morbidity and mortality among both men and women;

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odor annoyance; nasal irritation; atherosclerosis in animal models; endothelial cell dysfunctions; a prothrombotic effect; and tumors in laboratory animals.

These conclusions are contained in the 2006 Surgeon General’s Report. Lorillard encourages consumers to rely upon the conclusions of the Surgeon General in making decisions about smoking.

II. Supporting Material

This Court has ordered Lorillard to submit five proposed corrective statements, and appears to have largely dictated the content of all five of those submissions. Lorillard believes no corrective statements should be ordered, in part because Lorillard has been denied the opportunity to litigate the specific content of any corrective statement, has been ordered to “propose” statements the content of which Lorillard believes cannot survive First Amendment scrutiny, and because an order requiring Lorillard to make any public statements on the subjects identified by the Court – regardless of their content – will violate Lorillard’s First Amendment rights.4 Nonetheless, as it is compelled to do under this Court’s Order, Lorillard has submitted the foregoing proposed corrective statements, and has included, as best it can discern, the Court-mandated content in each of its five proposed statements.

A. Overview

This Court has found that “each Surgeon General’s Report is intended to represent and, as a result of an extensive peer-review process, does represent the scientific consensus on smoking and health topics.” Final Op. at ¶ 3355. Lorillard believes the public should be guided by and rely upon the Surgeon General in making decisions regarding smoking. Accordingly,

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4 It is well established that “the right of freedom of thought protected by the First Amendment … includes both the right to speak freely and the right to refrain from speaking at all.” Wooley v. Maynard, 430 U.S. 705, 714 (1977) (citing Board of Education v. Barnette, 319 U.S. 624, 633-34 (1943)). “The right not to speak inheres in political and commercial speech alike, and extends to statements of fact as well as statements of opinion.” Int’l Dairy Foods Assoc. v. Amestoy, 92 F.3d 67, 71 (2nd Cir. 1996) (internal citations omitted).

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where possible, Lorillard has relied on the conclusions of the Surgeon General for the content of its proposed corrective statements, as they are phrased by the Surgeon General.5

In each of its proposed statements, Lorillard has identified the source of the proposed statement, and the reason (this Court’s Order) it is being provided. The First Amendment requires that such attribution be included in any statement ordered by the Court.6 See Avocados Plus, Inc. v. Johanns, 421 F.Supp.2d 45, 57 (D.D.C. 2006) (quoting Johanns v. Livestock Marketing Assn., 544 U.S. 550, 568 (Thomas, J., concurring)) (“the government may not … associate individuals or organizations individually with speech by attributing an unwanted message to them”); Planned Parenthood Minnesota v. Rounds, 375 F.Supp.2d 881, 887 (D.S.D. 2005) (granting a preliminary injunction against enforcement of state’s informed consent abortion amendments because “[t]he requirement that doctors create a statement in writing that includes the State’s message without a provision allowing the doctor to disassociate himself or herself from the materials, leads to a conclusion that [these] informed consent provisions of the statute are unconstitutional compelled speech”). Lorillard cannot be compelled to espouse government viewpoints as its own. See Wooley v. Maynard, 430 U.S. 705, 715 (1977) (“The First Amendment protects the right of individuals to hold a point of view different from the majority…”); Planned Parenthood, 375 F.Supp.2d at 886-87 (“South Dakota may not, however,

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5 The strongest statement about a causal relationship endorsed by the Surgeon General is that “[t]he evidence is sufficient to infer a causal relationship between smoking and [various diseases].” See 8/10/04 Carmona Dep. at 199:16-200:7 (attached at tab 1). 6 While necessary, including appropriate attribution is not sufficient to avoid violation of Lorillard’s First Amendment right to be free of compelled speech.

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violate the First Amendment rights of abortion providers by compelling them to espouse the State’s ideology.”).7


B. Specific Proposed Statements

1. Adverse Health Effects of Smoking

According to this Court’s Final Opinion, the corrective statement regarding the adverse health consequences of smoking must communicate “all the diseases which smoking has been proven to cause.” Final Op. at 1636. Lorillard’s proposed statement lists all of the diseases for which the 2004 Surgeon General’s Report concludes “the evidence is sufficient to infer a causal relationship” between that disease and smoking. See 2004 Surgeon General’s Report Executive Summary, Table 1.1, at 4-8 (attached at tab 3); id at Chapter 1 (excerpt attached at tab 4). Lorillard believes that its statement will need to be shortened for certain media, and proposes the following:

The following statement is made by Lorillard Tobacco Company pursuant to a Court Order in United States of America, et al. v. Philip Morris USA, Inc., et al., Civil Action No. 99-2496 (GK) (Order #1015, Aug. 17, 2006, at 4; Final Op. at 1636) (on appeal).

The Surgeon General has concluded that the evidence is sufficient to infer a causal relationship between cigarette smoking and numerous diseases, including lung cancer, several other cancers, coronary heart disease, and several respiratory diseases and conditions.

These conclusions are contained in the 2004 Surgeon General’s Report. Lorillard encourages consumers to rely upon the conclusions of the Surgeon General in making decisions about smoking.

2. Addictiveness of Smoking and Nicotine

This Court’s Final Opinion indicates that the statement on addiction must state not only

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7 Further, attribution to the Surgeon General serves an additional purpose. The record evidence demonstrates that the public considers governmental sources more credible than tobacco companies on issues relating to the health consequences of smoking. See, e.g., Viscusi WD at 107-111 (attached at tab 2).

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that cigarette smoking is addictive, but also that nicotine is addictive. Final Op. at 1636. Two of the major conclusions of the 1988 Surgeon General’s Report are: “1. Cigarettes and other forms of tobacco are addicting. 2. Nicotine is the drug in tobacco that causes addiction.” 1988 Surgeon General’s Report at 9 (attached at tab 5). Lorillard proposes use of these Surgeon General’s conclusions for the corrective statement on addiction.

3. “Low-Tar” and “Lights” Descriptors

The Court’s Order requires a corrective statement regarding “the lack of any significant health benefit from smoking ‘low tar,’ ‘light,’ ‘ultra light,’ ‘mild,’ and ‘natural,’ cigarettes.” Order at II.B.5. The Court’s Final Opinion indicates that the statement should state that these cigarettes “are no less hazardous than full-flavor cigarettes.” Final Op. at 1636-37. Lorillard’s proposed corrective statement tracks the language of the 2004 Surgeon General’s Report. See 2004 Surgeon General’s Report Executive Summary, at 25 (“Smoking cigarettes with lower machine-measured yields of tar and nicotine provides no clear benefit to health.”) (attached at tab 6). Lorillard’s proposed statement also identifies the particular product descriptors this Court intended the corrective statement to address.

4. Nicotine Manipulation

This Court concluded that “Defendants controlled the amount and form of nicotine delivery in their commercial products by controlling the physical and chemical make-up of the tobacco blend and filler.” Final Op. at 572. This is the corrective statement Lorillard proposes.8

5. Environmental Tobacco Smoke

The Court’s Final Opinion indicates that the corrective statement regarding

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8 Lorillard continues to object to the Court’s factual findings regarding nicotine manipulation, and objects because the government did not even seek a corrective communication on this issue. See Proposed Final Judgment and Order, Appendix A, filed June 28, 2005.

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environmental tobacco smoke should list “all the diseases which exposure to ETS has been proven to cause.” Final Op. at 1636. As this Court noted in its Final Opinion: “Although it is not in the record because it was issued this year, and accordingly, the Court does not rely upon it, the 2006 Surgeon General Report, titled ‘The Health and (sic) Consequences of Involuntary Exposure to Tobacco Smoke’ contains noteworthy conclusions” regarding the health effects of exposure to environmental tobacco smoke. Final Op. at 1522-23. Lorillard’s proposed statement lists the diseases for which the 2006 Surgeon General’s Report concludes “the evidence is sufficient to infer a causal relationship” between that disease and exposure to environmental tobacco smoke. (Excerpts attached at tab 7.)

III. Conclusion

Lorillard submits the foregoing proposed corrective statements pursuant to, and as required by, this Court’s August 17, 2006 Final Judgment and Remedial Order.

Dated: October 16, 2006 Respectfully submitted,

By /s/

Michael B. Minton

Richard S. Cornfeld

A. Elizabeth Blackwell

THOMPSON COBURN LLP

One US Bank Plaza, Suite 3500

St. Louis, Missouri 63101-1693

(314) 552-6000 – phone

(314) 552-7597 – fax

Kamran Q. Khan

SHOOK, HARDY & BACON L.L.P.

2555 Grand Blvd.

Kansas City, Missouri 64108-2613

(816) 474-6550 – phone

(816) 421-5547 – fax

Attorneys for Defendant

Lorillard Tobacco Company

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