R.J. Reynolds loses bid to end TV anti-smoking ad requirement
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By Jonathan Stempel
(Reuters) - A federal appeals court on Tuesday rejected R.J. Reynolds' bid to void a decade-old order requiring tobacco companies to televise "corrective" advertisements about the dangers of smoking.
The D.C. Circuit Court of Appeals said the Reynolds American Inc unit, whose brands include Camel, Newport and Pall Mall, did not show that the judge who ordered the ads exceeded her authority, and waited too long to challenge the requirement.
Reynolds American spokesman Bryan Hatchell declined to comment.
The ads were among a series of remedial measures imposed in 2006 by U.S. District Judge Gladys Kessler in Washington, D.C. against R.J. Reynolds, Altria Group Inc's Philip Morris USA and other tobacco companies, after she found them liable for concealing the risks of smoking for decades.
Kessler had required that each defendant run primetime ads on a major TV network at least once a week for a year.
The companies later litigated over what the ads should say.
But R.J. Reynolds also objected to the U.S. Department of Justice's insistence that it run two sets of ads, one for itself and one in its capacity as the successor to Brown & Williamson, which it bought in 2004.
In Tuesday's decision, however, Circuit Judge David Tatel said R.J. Reynolds failed to raise the double-ad issue in 2006 when it first appealed Kessler's remedial order.
He said this meant the Winston-Salem, North Carolina-based company could not be excused for waiting until 2014, when the government made its position known during negotiations, to object.
"Simply put, RJR cannot have it both ways," Tatel wrote. "Either the remedial order imposes a double-ad requirement, in which case we have appellate jurisdiction but RJR has no excuse for its untimeliness, or the order is unclear, in which case we would lack jurisdiction to entertain this appeal."
The decision upheld Kessler's June 2014 order outlining the dissemination of corrective statements. R.J. Reynolds agreed to the order but preserved its right to appeal the double-ad requirement.
On Oct. 21, British American Tobacco Plc offered to buy Reynolds American for $47 billion.
The case is U.S. et al v. Philip Morris USA Inc et al, D.C. Circuit Court of Appeals, No. 15-5210.
(Reporting by Jonathan Stempel in New York; Editing by Chris Reese)
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