United States v. Philip Morris USA Inc.
257 F. Supp. 3d 1
| D.D.C. | 2017Background
- This is a remand of the long-running RICO enforcement suit the United States brought against major cigarette manufacturers; the district court previously found a decades-long conspiracy to deceive the public about smoking’s health effects.
- The 2006 liability opinion ordered defendants to publish court‑mandated corrective statements in multiple media (newspapers, TV, packaging, websites).
- The parties and courts have repeatedly litigated the precise wording of the corrective statements; the D.C. Circuit has reviewed and remanded multiple times.
- The most recent remand (June 2017) focused on (1) whether preambles imply past misconduct, (2) First Amendment constraints on mandated statements, and (3) whether certain topic descriptions (especially for Statements C and D) impermissibly convey past wrongdoing.
- The Court of Appeals required a narrow textual fix to preambles (removing “Here is the Truth”) and instructed that Zauderer governs First Amendment review; it also proposed alternative permissible topic descriptions for Statement C.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether preambles imply past misconduct and thus violate RICO/prohibit remedial language | Preamble merely informs readers a federal court ordered the statement; correct wording can avoid implying misconduct | Original preambles (e.g., “Here is the Truth”) suggested past wrongdoing and are improper | Court ordered removal of language like “Here is the Truth” and approved revised preamble: “A federal court has ordered [Defendants] to make this statement about [topic].” |
| First Amendment standard governing compelled corrective statements | Government: Zauderer applies because this is factual, uncontroversial disclosure remedial to consumer deception | Defendants: Preconditioned to argue even modified preambles violate their speech rights | Court adhered to Zauderer as controlling standard and found the one‑sentence preamble reasonably related to the government’s interest and not unduly burdensome |
| Whether Statement C’s topic description improperly conveys past advertising/sales conduct (backward‑looking) | Government: corrective topic permissible if framed to avoid implying past misconduct; public interest justifies disclosure | Defendants: language requiring statement “about selling and advertising low tar and light cigarettes as less harmful” is backward‑looking and impermissible | Court accepted D.C. Circuit alternatives and selected the clearest permissible topic: “about low tar and light cigarettes being as harmful as regular cigarettes” |
| Whether Defendants waived First Amendment challenges to Statement D’s preamble language | Government: Defendants waived challenges to certain D language by prior litigation choices | Defendants: attempted to relitigate or contest language | Court held defendants had waived challenge to particular language (e.g., design to enhance nicotine delivery) and thus could not contest it on remand |
Key Cases Cited
- Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985) (establishes standard for compelled factual, uncontroversial commercial disclosures)
- United States v. Philip Morris, Inc., 449 F. Supp. 2d 1 (D.D.C. 2006) (district court liability opinion finding RICO violations and ordering corrective statements)
- United States v. Philip Morris USA, Inc., 566 F.3d 1095 (D.C. Cir. 2009) (appellate review addressing preamble language and applying Zauderer)
- Crocker v. Piedmont Aviation, Inc., 49 F.3d 735 (D.C. Cir. 1995) (principle that later phases of litigation should not reopen previously decided questions)
- United States v. Philip Morris USA, Inc., 801 F.3d 250 (D.C. Cir. 2015) (addressing corrective statements and waiver of challenges to certain preamble language)