ALF Should Force Court Ruling on "The Truth"

Fuming Over Smoking Ads
The Washington Post
Date: Feb 20, 2000
By Marc Kaufman / Washington Post Staff Writer

Editorial by Bill Godshall
In contrast to claims in the following Washington Post article, it is important to note that "thetruth" ads by the American Legacy Foundation (ALF) don't violate the Master Settlement Agreement (MSA) until and unless a tobacco company challenges ALF in court, and the court rules against ALF.

Therefore, health advocates are urged to quickly contact ALF to urge the organization to run "thetruth" ads that Philip Morris opposes, and to stop caving in to intimidation by tobacco companies and pro tobacco Attorneys General.

Write to: Hon. Christine Gregoire, Chair, Board of Directors
and Cheryl Healton, Executive Director
American Legacy Foundation
750 First St. NE, Suite 940,
Washington, DC 20002.

The pertinent clause of the MSA states that ALF's education fund "shall not be used for any personal attack on, or vilification of, any person, company, or governmental agency, whether individually or collectively."

Merriam Webster's Dictionary defines "vilify" as: - to utter slanderous and abusive statements against: defame

Thus, tobacco companies face the legal burden of proof to convince a court that the "thetruth" ads (or any other educational materials by ALF) slander or defame the tobacco industry, which hasn't occurred since none of the pulled ads make false statements about Philip Morris or other tobacco pushers.

Until and unless a court rules against ALF, the organization is free to expose the many past and ongoing lies and egregious actions by the tobacco cartel. And since research has shown that these types of advertisements are most effective in reducing tobacco use, ALF should develop more ads like the ones that Philip Morris dislikes.

- - - - - - -
When cigarette makers agreed to pay almost $250 billion in a landmark settlement with the states 18 months ago, anti-tobacco advocates hoped the national anti-smoking foundation that the deal created would become a formidable counterbalance to the tobacco industry's powerful marketing efforts.

Instead, the American Legacy Foundation has been vociferously criticized by the very advocates who lobbied to create it. The foundation's decision last week to pull two controversial television ads under pressure from the tobacco industry has caused public health and anti-smoking advocates to charge that the group's independence and integrity have been seriously compromised.

Foundation officials said last week they pulled the ads to avoid a draining fight with the industry and its supporters as the first major anti-smoking campaign was being rolled out. They said they might try to use the ads in the future.

But reflecting the growing concern of anti-smoking advocates, Sen. Frank R. Lautenberg (D-N.J.) said Friday he would lead other senators in calling for hearings if "the censorship" continues. Pulling the ads, he wrote in a letter to the foundation, "creates the unfortunate appearance that the foundation will back down when tobacco interests object, and undermines public confidence in the foundation's independence and ability to run an effective campaign."

The controversy -- over two ads shot in and around Philip Morris headquarters in New York -- has also exposed a largely unknown compromise written into the 1998 master settlement agreement between the tobacco industry and 46 state attorneys general. That agreement was signed after the Senate had killed a comprehensive tobacco bill, reducing the leverage of the attorneys general.

In exchange for $1.5 billion from the tobacco industry to fund the foundation's five-year national teen anti-smoking campaign, the attorneys general agreed in the settlement that the effort would not "vilify" the industry or its officers. The two ads were pulled last week after Philip Morris and several attorneys general complained that they were "inconsistent with the objectives of the settlement agreement" and that they vilified the industry.

But public health and anti-tobacco advocates say that attacking the industry for what they see as its duplicity -- by producing a deadly product that it advertises as appealing and sophisticated -- is essential for any successful anti-tobacco campaign.

"How can you run an anti-smoking campaign and not vilify the industry?" said former FDA commissioner David Kessler, an active anti-tobacco advocate. "It would be better to not take the money if the industry is able to pull the strings and take control."

"I'm very uncomfortable with the tobacco companies being the censors of what kind of anti-tobacco message can be used to reduce teenage smoking," said Mississippi Attorney General Mike Moore, who led the states' legal fight against the tobacco industry. His state was one of four that settled early with the industry, and he said there is no "anti-vilification" clause in his agreement.

"I think the Legacy Foundation has basically destroyed itself," said Stanton Glantz, a longtime anti-tobacco advocate at the University of California at San Francisco. "The tobacco companies always threaten aggressive ads, and you have to stand up to them. You just cannot turn over control of your ads to Philip Morris."

But officials of the foundation defend their decision as necessary to keep their anti-smoking campaign from being derailed by tobacco politics. State legislatures stand to receive more than $250 billion from the national tobacco settlement, and that money has created a powerful lobby eager to keep the agreement from being jeopardized in any way.

"There are very strong incentives for the political forces dependent on the larger streams of money to weigh in," said Cheryl Healton, president of the foundation. She said that while the board still believed it was on sound legal grounds when it approved the ads, there is "another political interpretation that might be different."

That reality was reflected in a letter sent by North Carolina Attorney General Michael F. Easley to foundation board chairman Christine Gregoire, the attorney general of Washington and an architect of the national tobacco settlement.

Three days before the board decided to pull the ads, Easley wrote that the attorneys general had agreed that the foundation would use its funds "for anti-smoking and health related ads, and not for ads designed to vilify the companies." Doing anything other than pulling the ads, Easley continued, "will jeopardize continued funding of the very important anti-youth smoking goals" of the foundation.

The advertising controversy comes as public health advocates also express mounting concern over the way states are using the billions of dollars due them under the tobacco settlement. While the Centers for Disease Control and Prevention has concluded that the states need to spend about 25 percent of their money on tobacco control if they want to create effective programs, the CDC estimates that the states have so far allocated an average of 7 percent on smoking prevention programs.

"There are some success stories and some notable failures," said Michael Eriksen, director of the CDC's Office on Smoking and Health. "Overall, the states are not doing as well as we would like to see."

Under the national tobacco settlement, the foundation will receive about $200 million this year to organize a national anti-smoking program and media campaign. While that amount is unprecedented, it is considerably less than the tobacco industry's estimated yearly advertising budget of about $5 billion.

States including California, Massachusetts and Oregon have initiated their own tobacco reduction programs in recent years -- often with very aggressive anti-smoking ads and with impressive results -- and the national settlement envisioned all the states doing the same. While tobacco companies have complained about some of those ads -- some of which do vilify the industry -- none have been precipitously pulled as a result.

The two ads that were "rotated out" by the foundation are part of a consciously "edgy" campaign called "thetruth," inspired and often managed by teens. One of the ads, shot in grainy black-and-white, shows hundreds of body bags laid around the Philip Morris headquarters as a way to dramatize the death toll from cigarette smoking.

The second ad features an actress entering the Philip Morris building with a suitcase labeled "lie detector." She asks to speak with a marketing director about whether nicotine is addictive, and is escorted out by security. Both ads scramble the faces of Philip Morris employees and neither identifies the company. Nonetheless, Philip Morris threatened legal and other action after viewing the ads.

Jared Perez of Tallahassee, one of the young activists of "thetruth" campaign, said he's "disappointed" that the ads were pulled.

"I definitely wish those ads were on the air," Perez said. "But I don't want to jeopardize the funding of the entire truth campaign. Would that have really happened? That's a matter of speculation for us all."

That the foundation is looking over its shoulder so early in its life is what has anti-tobacco advocates so worried and mad. The agreement that created the organization describes it as independent of the tobacco companies that fund it, and its board includes governors, attorneys general, doctors and prominent public health leaders.

Foundation officials say inclusion of the anti-vilification clause was an important goal for the tobacco industry. One likely reason for their insistence on the clause, officials said, is that in recent months the companies have mounted major advertising campaigns to present themselves as "responsible corporate citizens."

Complicating the foundation's efforts to air the two controversial ads was the reluctance of major networks to show them. While the networks accepted two ads in "thetruth" campaign, they resisted or rejected the ones shot at Philip Morris headquarters.

As seen by one top federal public health official, the foundation was in an enviable position several weeks ago--with the tobacco companies attacking it and the networks undermining its efforts.

"That opposition could have been used to their benefit if they had chosen to fight," the official said. "Instead, they gave in and put themselves in a stupid, ridiculous position . . . . If it had been me, I would have tested the waters and let them sue."

Despite the setbacks, foundation president Healton is optimistic that "thetruth" campaign will ultimately help inspire a decline in teen smoking. Three dozen more ads are scheduled to be released this year, in what is believed to be the largest public health campaign in the nation's history.

And by the end of last week, Healton said, the networks had agreed to run some of them.

Anti-Tobacco Spending
Amount of spending per capita on tobacco use prevention as a percentage of the amount recommended by the Centers for Disease Control and Prevention, as of Dec. 31.

Percentage of CDC Recommendation
State Spending Figures

TobaccoFreedom commentary: New Mexico plans to invest $2.75 million of the first year's settlement money. This amounts to less than 7% of the approximate $40 million tobacco industry payment.

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