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LOS ANGELES -- After smoldering for years, tobacco executives are asking courts to ban anti-smoking ads that portray them as callous killers who try to get kids addicted to nicotine. At issue are campaigns aimed at teenagers and funded by 13 state governments and an anti-tobacco foundation. Tobacco companies say they don't mind radio and TV spots that say smoking is unhealthy. But in a lawsuit filed in California, the companies say that the attacks are unfairly tipping juries against them in smokers' personal-injury suits, USA Today reported.
The tobacco industry's counterattack is part of a war over the next generation of smokers. The implied question in the two lawsuits is whether cigarette companies, with smoking rates falling across the United States, will gain a veto over the content of messages aimed at cutting the number of young tobacco consumers.
Why have tobacco firms waited until now to sue? Because their long streak of defeating smokers in civil jury trials has been broken. The companies are blaming a string of courtroom setbacks on the advertising onslaught that paints them, in the words of their California complaint, as "loathsome persons motivated by cynicism, greed and malevolence," the report said.
In the federal suit they filed in April in Sacramento, tobacco giants R.J. Reynolds and Lorillard allege that the California attacks "prejudice potential jurors." This wasn't an issue before 1997, when the Legislature repealed a law that immunized cigarette makers from smokers' claims. Since then, juries have voted big awards for plaintiffs in four of five California trials. In Delaware, Lorillard alleges that the American Legacy Foundation, formed by the National Association of Attorneys General, has unlawfully demonized tobacco executives in nationwide radio and TV spots since 2000. Manufacturers aren't suing to squelch state ads outside of California.
To score with teenagers, anti-smoking ads must be hard-hitting and "edgy," health activists contend. California spends more than any other state on anti-smoking ads -- $21 million a year -- and produces the most provocative campaigns. But it's California's TV spots that go too far, tobacco companies say. Some examples:
* A cynical executive tells colleagues that the tobacco industry needs 3,100 new smokers a day because 2,000 Americans quit smoking, "and another 1,100 also quit. Actually, technically, they die."
* Cigarettes fall from the sky onto a playground, wowing preteens. "We have to sell cigarettes to your child," a voice-over says. "We need a half-million new smokers a year just to stay in business."
Daniel Dohahue, R.J. Reynolds senior vice president and general counsel, says, "California has put its rather heavy thumb on the plaintiffs' side of the scale of justice." Surveys show that the ads "have a corrosive effect on the incoming attitude of jurors," he says.
Making the insult worse, cigarette companies say, is that the firms pay for them. California's anti-smoking messages are financed through a 25-cent-a-pack tax on tobacco sellers. The American Legacy Foundation has received $1.2 billion that tobacco firms paid under their settlement with 46 states in 1998. The settlement's terms allow ads about tobacco's risks but forbid "vilification" of sellers.