California court likely to dismiss suit accusing tobacco firms of targeting teens

By The Associated Press

09.16.02

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SAN DIEGO — A lawsuit that accuses tobacco companies of improperly marketing to California teenagers moved a step closer toward dismissal, with a judge saying such advertising might be protected by the First Amendment.

Superior Court Judge Ronald Prager issued a preliminary ruling Sept. 12 indicating he would dismiss the class-action lawsuit filed in 1998 against Philip Morris Inc., R.J. Reynolds Tobacco Co., Brown & Williamson Tobacco Co. and Lorillard Tobacco Co.

Prager, however, gave the plaintiffs until tomorrow to decide whether to present an oral argument later this month.

The lawsuit, filed by four San Diego smokers on behalf of California's estimated 1.5 million teen smokers, seeks restrictions on advertising broader than what tobacco companies implemented under their 1998 settlement with California and 45 other states.

The lawsuit also seeks an estimated $700 million to $2 billion earned from tobacco sales to minors between 1994 and 1999, said John F. McGuire, one of the four lead plaintiff attorneys in the case.

In June, Prager fined Reynolds $20 million, agreeing that the company improperly pitched cigarettes to teens in the pages of magazines such as Spin, Vibe and Rolling Stone that have large teen readerships.

But that lawsuit was filed by the state, which accused Reynolds of violating the 1998 settlement. Private plaintiffs cannot sue to enforce the settlement, which bars the companies from targeting minors directly or indirectly.

The class-action lawsuit alleges that tobacco companies target minors through tactics that include placing ads in stores near candy shelves and at a child's eye level. But Prager indicated that he had not found evidence that the four companies had run ads directly encouraging minors to smoke.

"There are no advertisements stating, 'Kids, don't wait to start enjoying the smooth pleasure of Camel,' " Prager wrote in the preliminary opinion. He added the restrictions sought by the plaintiffs "were too onerous to pass constitutional muster."

R.J. Reynolds, the nation's No. 2 tobacco firm, said a dismissal would be a victory for the First Amendment.

"It's a recognition that there is such a thing as commercial free speech and people who manufacture and sell products that are lawful to be sold have a protected First Amendment right to advertise," said Daniel W. Donahue, senior vice president and deputy general counsel for Winston-Salem, N.C.-based Reynolds.

"Reynolds Tobacco does not want kids to smoke, and we advertise our brands only to adult smokers," he said.

But McGuire said youth marketing is at the heart of the tobacco business.

"If you don't hook them young, you're not going to keep them," McGuire said. "So there's a business decision for them to target youth."

Prager did find some evidence that cigarette makers indirectly encouraged teens to smoke.

"At best, plaintiffs' evidence shows indirect encouragement or incitement for retailers and minors to ... sell or purchase cigarettes ... at some time in the future," wrote Prager, whose court has been assigned all tobacco lawsuits in California.

Donahue said he did not know what the judge was referring to and said he was unaware of any evidence that would constitute indirect encouragement.

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