6172: PUBLIC HEALTH INTERVENORS’ OPENING BRIEF IN SUPPORT OF THE UNITED STATES’ REVISED CORRECTIVE STATEMENTS AND REVISED IMPLEMENTATION PROPOSAL, Oct. 21, 2015

October 22, 2015 2:53 am by Gene Borio

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EXCERPT:

[O]nly one relatively minor issue remains: how to reframe the corrective statements’ preambles to remove the words “deliberately deceived,” which the Court of Appeals determined was impermissible under Section 1964 of RICO because it “disclose[s] defendants’ prior deceptive conduct.” Id. at *10 (emphasis in original). The revised corrective statements preambles proposed by the United States fully address that issue. By simply removing the words “deliberately deceived,” the United States has crafted new preambles that can raise no legitimate concerns.

Because the revised proposed preambles in no manner address Defendants’ past conduct, they amply comply with Section 1964. In addition, because the revised preambles are inarguably both factual and uncontroversial under Zauderer and its progeny in the United States Supreme Court and this Court, they are also entirely consistent with the First Amendment. . . . the Court should approve the United States’ revised corrective statements language.

The Court should also approve the United States’ proposed Order for implementing the corrective statements, which provides minimal changes to the detailed implementation approach the parties negotiated in 2014. Again, the United States’ approach obviates any legitimate concerns that the corrective statements will be executed in a manner either (a) materially different from the standards to which Defendants themselves previously agreed, or (b) that run afoul of either RICO Section 1964 or the First Amendment. Thus, for example, all executions continue to include only text with no pictures; continue to be in black and white with no colors; and continue to be presented in the font sizes and layouts to which the parties previously agreed. As the Court is well aware, the original Consent Order reflected a series of compromises on both sides. There is simply no basis for any suggestion that those compromises do not continue to be an appropriate approach to implementing the corrective statements.

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FULL TEXT:

Case 1:99-cv-02496-GK Document 6172 Filed 10/21/15 Page 1 of 14

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

Plaintiff,

TOBACCO-FREE KIDS ACTION FUND,

et al.,

Plaintiff-Intervenors,

v.

PHILIP MORRIS USA INC., et al.,

Defendants.

Civil Action No. 99-2496

Next Scheduled Court Date: None

__________________________________________

PUBLIC HEALTH INTERVENORS’ OPENING BRIEF IN SUPPORT OF THE UNITED STATES’ REVISED CORRECTIVE STATEMENTS AND REVISED IMPLEMENTATION PROPOSAL

INTRODUCTION

As the Court well knows, it found Ð and the Court of Appeals affirmed Ð that Defendants have engaged in a decades-long and massive fraud concerning the toxicity and addictiveness of cigarettes. United States v. Philip Morris USA, Inc., 449 F. Supp. 2d 1 (D.D.C. 2006), aff’d in part, 566 F.3d 1095 (D.C. Cir. 2009) (”Affirmance Opinion”). One of the vital remedies the Court crafted to prevent and restrain this misconduct from continuing are corrective statements. As the Court of Appeals explained in affirming this remedy, “Defendants will be impaired in making false and misleading assurances about, for instance, smoking-related diseases Ð as the district court found they continue to do Ð if they must at the same time communicate the opposite, truthful message about these matters to consumers.” Id. at 1140 (emphasis added).

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Many of Defendants’ challenges to the corrective statements remedy have already been definitively resolved, including that the statements are an appropriate remedy under RICO Section 1964, id. at 1139-41, and that the Zauderer test for compelled commercial speech applies to consideration of the statements’ specific language under the First Amendment. Id. at 1142-45 (citing Zauderer v. Office of Disciplinary Counsel of the Supreme Court, 471 U.S. 626, 651 (1985)). The Court of Appeals has also ruled that Defendants may not challenge the language in the statements simply setting forth the truth, exhaustively detailed in the Court’s more than 4,000 findings of fact, on each of the five topics covered by the statements. United States v. Philip Morris USA, Inc., __ F.3d __, 2015 WL 5599177, at *6 (D.C. Cir. May 22, 2015).1

Accordingly, only one relatively minor issue remains: how to reframe the corrective statements’ preambles to remove the words “deliberately deceived,” which the Court of Appeals determined was impermissible under Section 1964 of RICO because it “disclose[s] defendants’ prior deceptive conduct.” Id. at *10 (emphasis in original). The revised corrective statements preambles proposed by the United States fully address that issue. By simply removing the words “deliberately deceived,” the United States has crafted new preambles that can raise no legitimate concerns.

Because the revised proposed preambles in no manner address Defendants’ past conduct, they amply comply with Section 1964. In addition, because the revised preambles are inarguably both factual and uncontroversial under Zauderer and its progeny in the United States Supreme Court and this Court, they are also entirely consistent with the First Amendment. The United States has also made other minor wording changes Ð such as simply removing the word “falsely”

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1 They also may not challenge the scope of the corrective statements exposure the Court has ordered in multiple media. Id. at *6.

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in the lights statement (Statement C) Ð that could even arguably have fallen within the ambit of the Court of Appeals’ concern. Accordingly, the Court should approve the United States’ revised corrective statements language.

The Court should also approve the United States’ proposed Order for implementing the corrective statements, which provides minimal changes to the detailed implementation approach the parties negotiated in 2014. Again, the United States’ approach obviates any legitimate concerns that the corrective statements will be executed in a manner either (a) materially different from the standards to which Defendants themselves previously agreed, or (b) that run afoul of either RICO Section 1964 or the First Amendment. Thus, for example, all executions continue to include only text with no pictures; continue to be in black and white with no colors; and continue to be presented in the font sizes and layouts to which the parties previously agreed. As the Court is well aware, the original Consent Order reflected a series of compromises on both sides. There is simply no basis for any suggestion that those compromises do not continue to be an appropriate approach to implementing the corrective statements.2

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2 As detailed in the United States’ submission, because the newspaper, website, and onsert specifications in the original Implementation Consent Order relied on sample “mock ups” that showed what the statements should look like in each media, and Plaintiffs do not seek any different approach now, Plaintiffs are relying on those same original mock-ups in their revised implementation Order. As to the television ads, however, the United States is submitting a new set of proposed television ads Ð which the Public Health Intervenors fully support Ð because the Consent Order included the actual television ads the parties had agreed on, which were prepared by Defendants, and the text will now be changed. However, like the other executions, the new television ads conform to the same principles as the Consent Order in terms of font sizes, layout, and simple black text display of the revised statement language. The United States has simply selected its own voiceover artist rather than seeking to enlist the one Defendants used in making the prior television ads.

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BACKGROUND

A. The Court’s Trial Ruling And Earlier Appeal

In a landmark 2006 ruling, this Court made comprehensively-supported factual findings that Defendants have engaged in a massive fraud on the American people in five discrete areas Ð

(1) the adverse health effects of smoking; (2) the addictiveness of cigarettes and nicotine; (3) Defendants’ manipulation of cigarette design to insure nicotine addiction; (4) the purported health benefits of “light” cigarettes; and (5) the risks of secondhand smoke. See Affirmance Opinion, 566 F.3d at 1108 (summarizing district court findings). After finding Defendants’ fraud likely to continue, see 449 F. Supp. 2d at 928, the Court considered eight categories of remedies, finding that while many would “unquestionably serve the public interest,” only four are permissible under RICO Section 1964 Ð including the corrective statements remedy, requiring the placement of statements on all five topics in newspapers, on television, in pack onserts, and on company websites. Id. at 923-37.3

On appeal, the D.C. Circuit affirmed almost all of the district court’s findings and remedies. 566 F.3d at 1095. With regard to the corrective statements remedy in particular, the Court of Appeals rejected defendants’ arguments that the remedy is impermissible under civil RICO, finding that “[r]equiring Defendants to reveal the previously hidden truth about their products will prevent and restrain them from disseminating false and misleading statements, thereby violating RICO, in the future.” 566 F.3d at 1140 (emphasis added). As for Defendants’ First Amendment objections, the Court concluded that the “the publication of corrective

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3 The Court also required placement of the corrective statements at certain retail point-of-sale locations, but the Court of Appeals directed that this remedy was premature until the district court considered the impacts on affected retailers. 566 F.3d at 1141-42. The Public Health Intervenors urge that this matter, which remains pending before the Court, be resolved as expeditiously as possible.

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statements addressing Defendants’ false assertions is adequately tailored to preventing Defendants from deceiving consumers.” Id. at 1144. Accordingly, the Court of Appeals directed the district court to craft specific corrective language “geared towards thwarting prospective efforts by Defendants to either directly mislead consumers or capitalize on their prior deceptions by continuing to advertise in a manner that builds on consumers’ existing misperceptions.” Id. at 1144-45 (emphasis added).4

B. This Court’s Corrective Statements Ruling And The Corrective Statements Appeal

After extensive briefing and argument, in November 2012 this Court determined the language for the corrective statements, requiring each to begin with a preamble stating that the Court had found that Defendants “deliberately deceived the American public” on each of the five areas addressed in the Court’s ruling, and then, after stating “here is the truth,” listing the true facts in each area as demonstrated by the Court’s massive findings. United States v. Philip Morris USA, Inc., 907 F. Supp. 2d 1 (D.D.C. 2012). The Court then directed the parties into mediation to discuss how the corrective statements would be executed in the various media. Id. at 27.

In early 2014 the parties proposed an extensive implementation Order delineating how the corrective statements would be executed. See Dkt. No. 6021 (Jan. 10, 2014). After further proceedings, the Court approved an Amended Implementation Order in June 2014. See Order

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4 After passage of the Family Smoking Prevention and Tobacco Control Act (”Tobacco Control Act”), Pub. L. No. 111-31, 123 Stat. 1776 (2009), Defendants argued that there would be no further fraud and thus the corrective statements remedy (among others) was no longer appropriate. This Court rejected that argument, 787 F. Supp. 2d 68, as did the Court of Appeals. 686 F.3d 832 (D.C. Cir. 2012).

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#51-Remand (June 2, 2014). The Order and exhibits contained more than one hundred pages of detailed specifications and sample mockups for each media, including:

. The color, font, print size, and layout for the newspaper ads in print and online newspapers, including sample ads (id. at 5-8 and Exhibit C and D);

. The specific television ads (id. at 8-10 and Exhibit E);

. The color, font, print size, layout, and locations for the website statements, including displays on mobile phones, with decreasing prominence over eleven years, including sample website executions (id. at 10-18 and Exhibit F); and

. The color, font, print size, and layout for the package onserts, including sample onserts (id. at 18-21 and Exhibit G).

Although Defendants agreed not to contest the Implementation Order itself, id. at 22, they appealed the wording of the corrective statements.

In rejecting most of Defendants’ appeal, the Court of Appeals reiterated that the corrective-statement remedy is “permissible under section 1964 because defendants, if compelled to tell the truth about cigarettes, would, at the same time, be ‘impaired in making false and misleading assurances.’” 2015 WL 5599177, at *4 (emphasis added) (quoting 566 F.3d at

1140); see also id. (”In other words, ‘[r]equiring Defendants to reveal the previously hidden truth about their products will prevent and restrain them from disseminating false and misleading statements, thereby violating RICO, in the future.’” (alteration in original) (emphasis added) (quoting 566 F.3d at 1140)).

Turning first to the bulleted statements telling the public the truth about cigarettes, the Court of Appeals found that Defendants had waived their objections by not earlier challenging either this Court’s factual findings, or the specific findings the Court had directed be included in the statements. 2015 WL 5599177, at *6-7. Thus, for example, since in 2006 the district court had announced that Defendants would be required to make a corrective statement “about their

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‘manipulation of cigarette design and composition to ensure optimum nicotine delivery,’” id. at

*6 (quoting 449 F. Supp. 2d at 939), and Defendants had not appealed that specific ruling (as opposed to the general corrective statements remedy, which the D.C. Circuit upheld), the issue could not be re-litigated. 2015 WL 5599177, at *6. Similarly, since the Court of Appeals had previously rejected the argument that the Tobacco Control Act had obviated the need for this Court’s remedies, the Court of Appeals rejected Defendants’ argument that a corrective statement on “lights” is unnecessary because lights are no longer sold.5

The Court reached a different result with regard to the specific phrase “deliberately deceived the American public” contained in each of the corrective statement preambles. While reiterating that it is entirely appropriate to require Defendants to “tell the truth” about their products, the Court rejected the “deliberately deceived” phrase in the preamble as impermissible under RICO Section 1964, on the grounds that it “disclose[s] defendants’ prior deceptive conduct.” Id. at *9 (emphasis in original). Thus, the Court ruled that the corrective statements may not inform consumers that Defendants had, in the past, “deliberately deceived the American public.” Id. at *1. This is the only phrase in the corrective statements that the Court of Appeals directed this court to remove.

C. The Present Proceeding

On remand, reiterating that the “Court of Appeals ruled that the phrase ‘deliberately deceived the American public’” is impermissible, this Court directed the parties to “craft an

5

The Court of Appeals also noted that this particular remedy remains necessary because “consumers know that cigarettes once dubbed ‘light’ and ‘low tar’ remain on the market” in colored packs. 2015 WL 5599177, at *8.

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agreement for replacement language of the phrase singled out by the Court of Appeals,” and set a status hearing for October 1, 2015. Order #59-Remand (Aug. 20, 2015) at 2 (emphasis added). Unfortunately, the parties were unable to craft such an agreement. Accordingly, this Court has directed the parties to submit “briefs addressing both amendments to the language of the corrective statements and the details of their implementation” on an expedited schedule. Order #61-Remand (Oct. 1, 2015) at 2 (emphasis in original).

DISCUSSION

A. The Court Should Approve The United States’ Proposed Corrective Statements Language, Which Removes The Phrase Singled Out By The Court of Appeals.

1. The Revised Statements Are Appropriate Under RICO Section 1964.

The D.C. Circuit rejected the words “deliberately deceived the American public” from the corrective statements preambles because, rather than revealing the “truth about their products,” this portion of the preamble disclosed “defendants’ prior deceptive conduct.” 2015 WL 5599177, at *9 (emphasis in original). However, the Court of Appeals made absolutely clear that it is entirely appropriate for the corrective statements “to tell the truth about cigarettes.” Id. at *6 (emphasis added).

Therefore, to fully address the Court of Appeals’ concern, the revised corrective statements remove the entire phrase “deliberately deceived the American public.” Under the revised language, the statements simply introduce the bulleted facts about cigarettes by informing the public that the Court has ordered Defendants to make factual statements on each topic, and then introducing each truthful statement with the phrase “here is the truth.”

Each phrase in the revised introductory statement falls well within RICO constraints. First, it is entirely appropriate to inform the public that Defendants are making these statements.

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Indeed, the Court of Appeals explained that the Defendants will be “impaired in making false and misleading assurances” if they are “simultaneously required to tell the truth.” 2015 WL 5599177, at *9 (emphasis added); see also 566 F.3d at 1140 (”Defendants will be impaired in making false and misleading assurances about, for instance, smoking-related diseases or the addictiveness of nicotine Ð as the district court found they continue to do Ð if they must at the same time communicate the opposite, truthful message about these matters to consumers. Requiring Defendants to reveal the previously hidden truth about their products will prevent and restrain them from disseminating false and misleading statements, thereby violating RICO, in the future.”) (emphasis added). Thus, it is both imperative Ð and entirely appropriate Ð for the statements to begin by stating that this Court has ordered each of the specific companies to make the corrective statements.6

Second, the preambles may differentiate among the statement topics, such as “about the health effects of smoking.” The five different introductory phrases are essential for the reader to differentiate among the five sets of statements, and there is nothing about telling the public what

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6 This is especially true for the newspaper and television ads, for without identifying the companies by name the public will not know that Defendants are making the “corrective” statements, which is the entire purpose of the remedy. Indeed, the Court of Appeals has ruled that a general public health education campaign Ð which is what the corrective statements would become if they are devoid of any attribution to Defendants Ð is not a permissible civil RICO remedy. 566 F.3d at 1148; see also 449 F. Supp. 2d at 936 (rejecting remedy that would require efforts aimed at “educating youth and adults about the hazards of smoking and exposure to secondhand smoke.”). Moreover, Defendants themselves have already proposed that the statements declare that they are issued “by [Defendant] pursuant to a Court Order,” see Dkt. No. 5780 (Oct. 16, 2006), and, in the parties’ Joint Implementation Order, agreed that all of the corrective statements would identify all of the companies by name. See Order #51-Remand at 2 (replacing the term “Defendant Tobacco Companies” with the specific Defendant company names).

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the statement is about that runs afoul of the D.C. Circuit’s prohibition on describing Defendants’ past conduct.7

Third, there also is no obstacle to prefacing each of the approved bulleted statements with the words “here is the truth.” Indeed, the D.C. Circuit, first in the 2009 Affirmance Opinion, and then in the most recent appeal, repeatedly emphasized that the fundamental purpose of the corrective statements is to force Defendants to “tell the truth about cigarettes.” Id. at *6 (emphasis added). Thus, because this is a central part of the remedy that serves to prevent and restrain further misrepresentations, id., it is axiomatic that the preambles should inform readers that what follows is “the truth” about Defendants’ products. 8

Moreover, unlike the phrase Defendants “deliberately deceived the public,” which has now been removed from the preamble, the phrase “here is the truth” says nothing about defendants’ conduct, but rather emphasizes the importance of the statements the D.C. Circuit has approved concerning Defendants’ products. Accordingly, the Court should Ð and certainly may, consistent with RICO Section 1964 Ð direct Defendants to tell “the truth” about their products by prefacing the bulleted statements with the phrase “here is the truth.”

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7 While Statement D’s introduction is “about designing cigarettes to enhance the delivery of nicotine,” the D.C. Circuit ruled that Defendants have foregone any challenge to inclusion of this language in the corrective statements. 2015 WL 5599177, at *6.

8 See also Affirmance Opinion, 566 F.3d at 1140 (approving remedy whereby Defendants must “reveal the previously hidden truth about their products.”) (emphasis added); id. (”Defendants will be impaired in making false and misleading assurances about, for instance, smoking-related diseases Ð as the district court found they continue to do Ð if they must at the same time communicate the opposite, truthful message about these matters to consumers.”) (emphasis added); 2015 WL 5599177, at *9 (noting that Defendant may be “required to tell the truth”) (emphasis added); id. (characterizing the Affirmance Opinion as “holding that corrective statements, in revealing the truth about cigarettes, will prevent and restrain defendants from again violating RICO.”) (emphasis added).

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2. The Revised Statements Are Also Consistent With The First Amendment.9

The revised statements also fully comply with First Amendment principles. In rejecting Defendants’ original challenges to the corrective statements remedy, the D.C. Circuit emphasized that the First Amendment inquiry turns on the “nature of the speech that the corrective statements burden,” and that in this case the statements are appropriate as long as they contain “factual and uncontroversial information [ ] geared towards thwarting prospective efforts by Defendants to either mislead consumers or capitalize on their prior deceptions by continuing to advertise in a manner that builds on consumers’ existing misperceptions.” 566 F.3d at 114445 (emphasis added). The Court of Appeals also rejected Defendants’ arguments that the companies could not be forced to communicate truthful messages about matters of “public debate,” finding that “the intentionally fraudulent character of [Defendants’] noncommercial public statements undermines any claim for more exacting scrutiny.” Id. at 1144 (emphasis added). In sum, the D.C. Circuit made clear that “the publication of corrective statements addressing Defendants’ false assertions is adequately tailored to preventing Defendants from deceiving consumers.” Id. (emphasis added).

As noted, Defendants may no longer challenge the bulleted factual points in each corrective statement on First Amendment grounds, as the D.C. Circuit has definitively resolved those issues. As for the revised preamble, once again, having removed the phrase “deliberately deceived the American public,” there can be no legitimate dispute that the preamble falls well within First Amendment standards. It is entirely factual Ð and uncontroversial Ð for the

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9 The D.C. Circuit did not address Defendants’ First Amendment challenges to the original version of the corrective statements, and Intervenors maintain that even the original version was entirely permissible under the First Amendment.

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statements to contain an introduction informing the reader (a) a Court is ordering the companies to make the statements; (b) the topics of the statements; and (c) this “is the truth” on each such topic.10

Each of these components of the introduction is both fact, rather than opinion, and is accurate, rather than facts subject to legitimate dispute. See, e.g., Grocery Mfrs. Ass’n v. Sorrell, No. 14-117, 2015 WL 1931142, at *32 (D. Vt. Apr. 27, 2015) (”‘A factual disclosure does not reflect an opinion merely because it compels a speaker to convey information contrary to its interests.’”) (quoting Disc. Tobacco City & Lottery, Inc. v. United States, 674 F.3d 509, 569 (6th Cir. 2012) (”Facts can disconcert, displease, provoke an emotional response, spark controversy, and even overwhelm reason, but that does not magically turn such facts into opinions.”)), appeal filed, No. 15-1504 (2d Cir. May 6, 2015). They thus fall well within the requirement for the statements to be factual and uncontroversial. See, e.g., Am. Meat Inst. v. U.S. Dep’t of Agric. (”AMI”), 760 F.3d 18, 27 (D.C. Cir. 2014) (en banc) (citing Zauderer, 471 U.S. at 651).11

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10 The revised proposal by the United States also changes the word “filtered” to “light” in the second bulleted point of Statement C, as directed by the Court of Appeals. 2015 WL 5599177, at *8.

11 See also Sorrell, 2015 WL 1931142, at *31 (”[T]he fact that Plaintiffs would prefer not to make the required disclosure is insufficient to render it “controversial.”); CTIAÑ The Wireless Ass’n v. City of Berkeley, No. 15-2529, 2015 WL 5569072, at *17 (N.D. Cal. Sept. 21, 2015) (”[T]he term “uncontroversial” should generally be equated with the term “accurate.”"); AMI, 760 F.3d at 34 (Kavanaugh, J., concurring) (explaining that a disclosure cannot be “controversial” where it is “factually straightforward, evenhanded, and readily understood.”); cf. Fund for Animals v. Frizzell, 530 F.2d 982, 988 n.15 (D.C. Cir. 1975) (explaining that controversy means more than disagreement).

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B. The Court Should Approve The United States’ Proposed Corrective Statements Implementation Measures, Which Track The Parties’ Earlier Implementation Agreement.

When the parties submitted their original proposed Implementation Order in January 2014, the Court Ð and certain Amici Ð raised concerns regarding the corrective statements dissemination in newspapers and on television. The parties worked in good faith to address those concerns, and, in April 2014, submitted a Joint Praecipe explaining certain changes to the Implementation Order. See Apr. 22, 2014 Joint Praecipe (Dkt. No. 6081). The Joint Praecipe explained that the proposed Consent Order on Implementation Ð which the Court ultimately approved Ð reflected a “complex” agreement hammered out through many months of negotiation and compromises on all sides, and urged the Court to enter the agreement as proposed. Id.

Obviously, certain minor changes to the Implementation Order are necessary to accommodate the revised corrective statements preamble, which is approximately twelve fewer words than the original preamble. This includes the portions of the Implementation Order that set out the complete preamble itself and delineate, for example, precisely where it needs to appear on the companies’ websites. However, while the Public Health Intervenors certainly would prefer significantly stronger executions of the various corrective statements (e.g., more prominence on websites, larger fonts in newspapers, more than simple text in the television ads), in the interest of reaching closure on these issues and getting these statements into the public domain as soon as possible, they support the United States’ proposal, which makes the fewest changes necessary to simply conform the Order to the revised statements language, without changing the fundamental nature of any of the executions.

Similarly, Intervenors support the revised television ads the United States has submitted, which also maintain the same approach as the original ads to which Defendants agreed. Having

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maintained the corrective statements executions in the same manner previously agreed to by Defendants, there is no basis for any objections to the United States’ revised proposed Implementation Order.

CONCLUSION

For the foregoing reasons, the Public Health Intervenors respectfully urge the Court to approve the United States’ proposed revised corrective statements language and proposed

Implementation Order.

October 21, 2015 Respectfully submitted,

/s/ Howard M. Crystal

Howard M. Crystal (D.C. Bar No. 446189)

Katherine A. Meyer (D.C. Bar No. 244301)

MEYER GLITZENSTEIN & EUBANKS LLC

4115 Wisconsin Ave., N.W. Suite 210

Washington, DC 20016

202-588-5206

hcrystal@meyerglitz.com

Attorneys for the Public-Health Intervenors

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