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Taking On an Antismoking Campaign

Its advertising is aggressive, and deliberately so. (Remember the body bags piled up outside Philip Morris headquarters in New York?) But although tobacco companies have complained before about the commercials made by the American Legacy Foundation, one company is now formally threatening legal action against the organization, apparently for the first time.

The aggrieved company is Lorillard Tobacco of Greensboro, N.C., a unit of the Loews Corporation. It charges that American Legacy, which was created as part of the 1998 settlement between the tobacco companies and 46 states to run antismoking ads, has exceeded its mandate under the settlement by disparaging the tobacco industry. In a letter sent by fax last Friday, Lorillard's vice president and general counsel, Ronald S. Milstein, told Legacy that his company intended to take the foundation to court in 30 days to stop it from "vilifying and personally attacking tobacco companies and their employees."

The notice is required by the terms of the $206 billion settlement between the companies and the states, which, among other things, provided for the creation of American Legacy. Lorillard's notice was not specific, saying only that the foundation's so-called Truth campaign, a series of anti smoking print advertisements and radio and television commercials aimed primarily at teenagers, had "strayed far afield from the facts concerning tobacco products."

Nevertheless, Lorillard has made it clear that it objects mainly to a radio commercial that American Legacy produced last year. In the spot, a teenager who claims to be a dog walker calls Lorillard's offices. Employees ask him his business, and he responds by offering to provide the cigarette maker with "quality dog urine." The reason: it contains urea, which, he says, is a chemical that is also put into cigarettes.

Lorillard was unhappy with the commercial from the outset, according to Steve Watson, a company spokesman. It went so far as to file an objection with the Federal Communications Commission, claiming that it was improper for American Legacy to have taped Lorillard employees surreptitiously. The spot is no longer being broadcast (it went "out of rotation," according to American Legacy officials), but the complaint is still pending, and has yet to be resolved.

Until last week, company representatives were also holding discussions with their counterparts at American Legacy about the spot, Mr. Watson said. But it became clear, he said, that American Legacy was "not concerned about educating parents and children but instead about vilifying tobacco companies and their employees," prompting cessation of the talks and the sending of the 30-day notice.

American Legacy officials have denied any wrongdoing. "We have some ads that are edgy," the foundation's president, Cheryl Healton, said at a news conference yesterday in Washington. "But it's an enormous stretch to call them vilification."

Ms. Healton called Lorillard's objections to the Truth campaign a "smoke screen," suggesting that they were motivated by its seeming effectiveness. She cited as proof a University of Michigan study released in December that found that teenage smoking had decreased sharply from 1996 to 2000.

Whatever the motivation, the legal consequences of Lorillard's notice are far from clear, according to Christine O. Gregoire, the chairwoman of American Legacy and the attorney general of Washington State. This is the first such notice served under the tobacco settlement, she said, which involves 46 individual states and not the federal government. It is conceivable that Lorillard might have to sue in all of those states, which it has not yet decided to do, Mr. Watson said. Moreover, he said, the company is not seeking money damages, but rather wants a declaratory judgment holding that Legacy and the Truth campaign have gone too far. That is a highly subjective issue, to say the least.

In the meantime, American Legacy plans to go forward, Ms. Gregoire said.

"Why in the world would we change our course now, when for the first time we are seeing success?" she said.


Bernard Stamler, The New York Times. January 23, 2002

Copyright © 2002 The New York Times Company. All rights reserved.