February 06, 2014
By George E. Curry
A “concerned” U.S. District Judge Gladys Kessler is expected to rule next week on whether advertising she ordered major tobacco companies to purchase in order to correct their past false statements about the danger of smoking should be expanded to include Black media.
On Jan. 22, Judge Kessler held a hearing in Washington, D.C. in which she stated, “… I do have some real concerns and I want to put those concerns in the public record now so that everybody is clear about matters of substantial import.”
She continued, “Number one, I’m concerned about the issue that has arisen – and I have to say –arisen for the first time some seven years, I believe, if I’m counting right, seven years after Order Number 1015 was issued. And the issue is beliefs that in setting forth the newspapers in which the corrective statements have been placed, that we have ignored an extremely important segment of the population in general, and that we have ignored a segment of the population that was directly targeted by the Defendants in this case.”
Cloves C. Campbell, Jr., chairman of the NNPA, said he remains optimistic that his group will get a fair hearing in federal court.
“Judge Kessler has a reputation for being a fair-minded judge and we are hopeful that when all the facts are presented, she will see that the Black media should be central to any proposed settlement,” Campbell said.
A proposed agreement was reached June 9 between the U.S, Justice Department, the Tobacco-Free Kids Action Fund and the four major tobacco manufacturers – Altria, R. J. Reynolds, Lorillard and Philip Morris USA – that would place advertising in White and Hispanic newspapers and the three major TV networks. No advertising was planned for any Black print or broadcast media company.
Under the proposed agreement, the tobacco companies must purchase full-page Sunday ads in White- and Hispanic-owned newspapers and commercials on either ABC, CBS or NBC network four days a week for a year. Target Market News, which first disclosed the proposed settlement said industry sources place the value of the ad buy at $30 million to $45 million.
The U.S. Justice Department filed suit against the cigarette manufacturers on Sept. 22, 1999 charging that they had violated the Racketeer Influenced and Corruption Organizations Act.
After the companies were found guilty, Judge Kessler wrote in her ruling that the case “is about an industry, and in particular these Defendants, that survives, and profits, from selling a highly addictive product which causes diseases that lead to a staggering number of deaths per year, an immeasurable amount of human suffering and economic loss, and a profound burden on our national health care system. Defendants have known these facts for at least 50 years or more. Despite that knowledge, they have consistently, repeatedly, and with enormous skill and sophistication, denied these facts to the public, to the Government, and to the public health community… In short, Defendants have marketed and sold their lethal products with zeal, with deception, with a single-minded focus on their financial success, and without regard for the human tragedy or social costs that success exacted.”
In her initial ruling against the tobacco industry in 2006, Judge Kessler provided a list of publications where “corrective statements” should be made. It is uncertain how or if she will amend her original list beyond the two newspapers that have since gone out of business.
The National Newspaper Publishers Association (NNPA) and the National Association of Black Owned Broadcasters (NABOB), two trade associations whose members reach more than 95 percent of African Americans, filed an amicus curiae or friend of the court brief objecting to the proposed settlement.
“…The Defendants targeted the African America community with advertising campaigns which were delivered in part by their paid advertisements in African American print and electronic media,” the amicus brief states. “The proposed remedy does not list any media which specifically targets the African American community. To insure that the Corrective Statements reach the population that the Defendants targeted, the Court should require the parties to jointly select alternative newspapers that specifically target the African American community.”
Judge Kessler has scheduled another hearing for Feb. 18. Since the NNPA and NABOB went to court, the NAACP has also filed a supporting brief.
“To rectify the damage created by Defendant in their targeting of African American communities, this Court should require Defendants to use NABOB and NNPA member organizations to fulfill its remedial order. Black-owned print and visual media remain a primary method of receiving information for African Americans,” their amicus brief stated. “The NAACP fears that the current list of media sources will not effectively inform the black community of the Defendant’s illegal targeting and provide correct information in line with this court’s order.
“In fact, the Defendant corporations knew of the black print media’s reach when it used their advertising space to target African American communities. Leaving the NNPA and NABOB member publications out of the remedial order advertising list allows the Defendant to walk away from the community that it directly targeted African American communities. As a result, the Defendants will have directly disseminated misinformation to the African American community without the responsibility of returning to correct their errors.”
After NNPA and NABOB went to court, two cable giants filed briefs asking that they be included in the settlement deal.
FOX, which has been in operation since 1986, said it should be included, saying: “ FOX Network programming is broadcast over the airwaves to virtually any U.S. resident with a working antenna and a television, reaching 99.8% of the United States population, slightly more than ABC, CBS or NBC.”
In its amicus filing, Fox stated, “FOX enjoys particular popularity among younger audiences, having been the preferred network among teenagers 12-17 and men 18-34 for 12 consecutive years. It was also the top-rated network for 11 of the past 12 seasons among all adults under the age of 35.”
Viacom, Inc. – the parent company of BET, MTV, MTV2, VH1, Comedy Central – filed a brief challenging the idea that the three major networks reach a significant number of young people or African Americans.
“The Proposed Consent Order provides that Defendants shall cause Corrective Statements to be broadcast through 260 spots on CBS, ABC, or NBC between Monday and Thursday, from 7 p.m. to 10 p.m., over one year,” Viacom said in its brief. “This ignores the reality that much of the programming on those networks during those hours is not geared to reach youth and African American demographics. For example, the median age of viewers of CBS, ABC, and NBC is between 50 and 60 years old, and only 1%-2% of those networks’ primetime viewers are Black adults ages 18 to 34. Moreover, pursuant to the Proposed Consent Order, Defendants could purchase the lowest-cost airtime on the least-viewed shows on CBS, ABC, and NBC and further minimize the impact of the Corrective Statements on young adult and Black viewers.”
The amicus brief continued, “The Court should not countenance this approach. Defendants should be required to target the young adult and Black markets with their Corrective Statements, just as they targeted young people and young African Americans with their deceptive advertising and marketing campaigns.”