Tobacco execs: Protect us or else

Wednesday, February 25, 1998

WASHINGTON (AP)—Unless Congress grants them the lawsuit protection they seek, tobacco companies will not curb their advertising as their $368 billion agreement with the states would require, executives say.

“I think we would have a very difficult time not asking for our First Amendment rights and maintaining them in light of that situation,” Laurence Tisch, co-chairman Lorillard Tobacco Co.'s parent firm, told the Senate Commerce Committee on Tuesday. The First Amendment of the U.S. Constitution guarantees press and speech freedoms, among other basic rights.

Steven Goldstone, chairman and chief executive officer of RJR Nabisco, agreed that the industry would challenge legislation curbing advertising.

“Our company wouldn't survive, so I'd have to assert my constitutional rights,” Goldstone said.

The industry's confrontational approach departed from the contrite tone taken by the executives during a hearing before the House Commerce Committee on Jan. 29.

Sen. John Kerry, a Massachusetts Democrat, asked the executives if they would voluntarily steer their advertising away from children regardless of whether Congress grants the industry immunity. Saying the vast majority of smokers are adults, the executives wouldn't commit to that pledge. But they said their company policies preclude them from targeting children.

“There is not a voluntary willingness or acknowledgment of the need to change the way you're advertising, whether or not there is an agreement,” Kerry scolded. “If you're not willing to say that under any circumstances you're not going to advertise in any way that targets those kids, or that could target them, then there's something lacking in the good faith of the dialogue.”

Convincing Congress of its good faith remains the tobacco industry's highest hope of attaining the lawsuit protections they demand, lawmakers say. But last June's settlement that includes those protections has received a frosty welcome on Capitol Hill from legislators up for election this year.

Republican leaders have indicated little willingness to do favors for an industry that, recently released documents show, tried to hook kids on tobacco in past decades.

As for mandatory versus voluntary restrictions on tobacco advertising, Phillip Zisook, a First Amendment and defamation attorney, argues that government officials must address free-speech concerns about the rules and explain how they would actually solve the problem.

Zisook said: “Truthful and non-misleading advertisements regarding lawful products cannot be censored by the government unless the government meets the heavy burden of showing that the restrictions on speech will directly and materially advance the purpose of the legislation.”

Zisook represents the Federation of Advertising Industry Representatives, a group formed to respond to a Chicago law that restricts advertising in certain areas.

“Before they can censor speech there are less restrictive alternatives that can be invoked to achieve the same legislative purpose without censoring speech such as enforcement of existing laws or education,” suggested Zisook, a partner of the Chicago-based law firm Deutsch, Levy & Engel.

Another exchange before the panel on Tuesday further damaged the industry's credibility with Congress, several lawmakers said. The tobacco company executives wavered anew on whether tobacco is addictive, departing from their remarks last month before a House panel.

“I wouldn't personally, in a serious debate about smoking, label tobacco as addictive,” said Nick Brookes, chairman and CEO of Brown and Williamson Tobacco Corp. “What addiction, in my use of that word, means, is that people can't quit.”

“I would consider it more of a habit, than I would an addiction,” said Vincent A. Gierer Jr. of U.S. Tobacco.

“I've always thought, and I was a smoker, that cigarette smoking is habit-forming, and I think that most Americans believe that kind of activity is addictive,” said Goldstone.

Their testimony before the Senate Commerce Committee “disappointed” Chairman John McCain, an Arizona Republican who is the author of a bill that would make law much of the June settlement the tobacco industry wants passed by Congress.

“There's a lot of symbolism in that question” about whether nicotine is addictive, McCain told reporters later. “It's symbolic of the skepticism that exists about their sincerity.”

— First Amendment Center staff contributed to this report.