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Federal judge dismisses challenge to state's anti-smoking ads

By The Associated Press

SACRAMENTO, Calif. — A federal judge threw out claims by two tobacco companies that California’s tough anti-smoking ads unfairly smear their reputation, saying the ads are “simply the cost of living in a democracy.”

A spokeswoman for R.J. Reynolds Tobacco Co. said the North Carolina-based company, along with Lorillard Tobacco Co., would appeal yesterday’s ruling.

The tobacco giants — which together claim 35% of California’s tobacco market — sued the state Department of Health Services in April to stop a series of ads that it said vilify tobacco companies and their executives. One such ad shows cigarettes raining down on school children, while a narrator says “We have to sell cigarettes to your kids. We need half a million new smokers every year just to stay in business.”

The case hinged on whether the ads are considered “government speech” or “compelled speech,” in which the tobacco companies are forced to pay for ads they don’t agree with. R.J. Reynolds and Lorillard claimed the ads violate their First Amendment right to free speech.

State attorneys, however, argued last month in federal court that it’s the government, not the tobacco companies, that pays for the ads.

Under state law, California uses part of the 87-cent tax for every pack of cigarettes sold to pay for health education, including a media campaign discouraging people from smoking.

In his 57-page ruling, U.S. Eastern District Court Judge Lawrence K. Karlton sided with state attorneys, saying that “no one could possibly confuse them (the ads) for the tobacco companies’ own speech.”

“The government’s speech is necessarily paid for by citizens, some of whom — like the plaintiffs here — disagree with its message,” Karlton wrote, adding that the disagreement “is simply the cost of living in a democracy.”

Diana Bonta, director of the Department of Health Service and a defendant named in the lawsuit, said the ruling has implications for other states looking to model their ad campaigns after California’s aggressive anti-smoking ads.

“These are the kinds of messages that have been very forceful in grabbing the public’s attention, and they’re working,” Bonta said.

An official from Lorillard declined to comment on the ruling yesterday, but R.J. Reynolds spokeswoman Ellen Matthews said the lead attorneys plan to appeal the ruling to the 9th U.S. Circuit Court of Appeals in San Francisco.

The case is R.J. Reynolds v. Bonta, S03659.

9th Circuit tosses bid to stop California's anti-smoking ads
But dissenting judge says state cigarette taxes, used to help fund ads, 'constitute an exceptional case of government intrusion on the right not to be compelled to finance speech.' 09.29.04

Tobacco companies sue California over anti-smoking ads
Lawsuit claims ads violate cigarette makers' First Amendment rights by compelling them to fund speech they don't agree with. 04.03.03


Compelled advertising

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