Black group seen appealing tobacco ruling

PHILADELPHIA, Sept. 24, 1999 (Reuters) - A civil rights group that sued to stop the tobacco industry from marketing menthol cigarettes to blacks will likely appeal a federal judge's decision to dismiss the case, an attorney said on Friday.

The National Association of African-Americans for Positive Imagery, which has spent a decade fighting to stop the sale of fortified tobacco and alcoholic products in the black community, claimed in its lawsuit that cigarette makers violated the civil rights of blacks by targeting them for menthol cigarette sales.

U.S. District Judge John Padova dismissed the case on Thursday, saying federal civil rights statues did not prohibit the marketing of consumer products to specific groups of potential customers.

Tobacco industry officials welcomed the judge's ruling. But plaintiffs' attorney Stephen Sheller said the ruling was not unexpected and predicted that the Philadelphia-based association would not give up its fight.

``We're almost certainly going to appeal,'' he said. ``The federal judicial system is notorious in its unwillingness to do anything beneficial for public health and safety with regard to the tobacco industry.''

The association alleges that while menthol cigarettes are sold to both black and white smokers, industry marketers had targeted menthol and high-tar brands at the black community for 45 years through newspaper and billboard ads.

The lawsuit alleged that 70 percent of black smokers smoke menthol cigarettes as a result of the marketing campaign, while menthol smokers account for only 20-25 percent of whites who smoke. Blacks also are 30 percent more likely to die of smoking-related illnesses, the lawsuit said.

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Judge Dismisses Smoking Suit; Suit claims cigarette ads targeted African Americans

Shannon P. Duffy The Legal Intelligencer Law News Network September 24, 1999

A federal judge has dismissed a proposed class action civil rights suit brought by African American smokers of menthol cigarettes who say they were targeted in an aggressive marketing campaign but were never warned of the increased health risks of smoking mentholated cigarettes.

"Plaintiffs have not cited any authority holding that the type of 'targeting' alleged in this case violates Sections 1981 or 1982," U.S. District Judge John R. Padova wrote in his 25-page opinion in Brown v. Philip Morris Inc.

"Plaintiffs have cited no case law, and the court can find no basis for creating a cause of action under these sections to fit this case. Holding that defendants could limit plaintiffs' freedom to contract or to own property simply by targeting plaintiffs with intensive advertising that caused plaintiffs to choose defendants' dangerously defective mentholated tobacco products would require a radical departure from the jurisprudence of Sections 1981 and 1982, a departure this court is not prepared to make," Padova wrote.

The plaintiffs in the suit allege that tobacco companies have for many years targeted African Americans and their communities with specific advertising to lure them into using mentholated tobacco products. Every year, the suit said, the tobacco industry spends millions of dollars on advertising designed exclusively to appeal to African Americans.

Low-income African American communities in major United States cities have more tobacco billboards than do neighboring more affluent white communities, the suit said.

The suit relied heavily on a recently released report of the Surgeon General titled, "Tobacco Use Among U.S. Racial/Ethnic Groups," that documents the targeting of the African American community by the tobacco companies.

Based on the conclusions of the report, the suit alleged that, as part of its overall scheme, the tobacco industry intentionally replaces thousands of African American users who die each year by unfairly and illegally targeting young African Americans on the basis of their race.

The report found that African American daily smokers begin smoking when they are young, noting that 82 percent had their first cigarette before the age of 18, 62 percent before the age of 15, and 32 percent before the age of 14.

"Thus, a Black person who does not begin smoking in childhood or adolescence is unlikely ever to begin," the report concluded, and the younger an African American person begins to smoke, the more likely he or she is to become a heavy smoker and to die of lung cancer.

The suit alleged that tobacco companies pursued a course of intentional conduct and a conspiracy of deception and misrepresentation against the African American public to promote and maintain sales of mentholated tobacco products in order to maximize their profits.

The alleged conspiracy consists of three strategies: (1) acting in concert to represent falsely that their mentholated tobacco products are safe for African Americans to use; (2) engaging in a concerted campaign to saturate the African American community with dangerous, defective and hazardous products which they know cause harm, in violation of the civil and Constitutional rights of African Americans; and (3) misrepresenting, suppressing, distorting and confusing the truth about the health dangers of mentholated tobacco products.

With respect to relevant statutes of limitations, the plaintiffs argued that the defendants' intentional acts of fraudulent concealment tolled any such statutes.

Until 1997, when the tobacco companies released some 39,000 documents, they said, the plaintiffs were not aware of the successful concealment of a massive conspiracy to mislead the American public regarding the safety of mentholated tobacco products and the tobacco companies' successful effort to conceal the defective, harmful and hazardous nature of those products.

And with the release to the public of the Surgeon General's Report in 1998, they said, the African American public realized for the first time the true extent of the tobacco industry's pattern of targeting the African American community with mentholated tobacco products and the harmful health effects of those defective products on plaintiffs and the proposed class members.

MOTIONS TO DISMISS

But defense lawyers argued that neither Section 1981 nor 1982 prohibit discriminatory advertising. The complaint was fatally flawed, they argued, because the plaintiffs hadn't alleged the deprivation of any interest protected by these statutes.

Both civil rights claims failed, they argued, because the plaintiffs failed to allege a deprivation of either contractual rights protected under Section 1981 or property rights protected under Section 1982.

Padova agreed, saying "Sections 1981 and 1982 do not encompass discriminatory advertising."

The plaintiffs argued that their claims were not just a matter of discriminatory advertising but of "targeting," which they alleged was intensive advertising involving a "very invidious scheme of racial discrimination which has existed for a long time and has resulted in a disparate impact of African Americans who are dying at greater rates and who suffer diseases caused by smoking mentholated cigarettes than in the white community."

But Padova found that the claims still fell short of meeting either statute.

"Plaintiffs do not claim defendants offered them different contractual terms than they offered to white smokers, but rather that responding to defendants' intensive advertising, they chose to use the defective mentholated tobacco products, and thereby suffered serious injury," Padova wrote.

The plaintiffs cited several cases in which they said courts recognized targeting as a cause of action.

But Padova found that none of the cases could compare directly to the claims of African American menthol-cigarette smokers.

"Plaintiffs would have to contend that the tobacco products defendants offer for sale to African Americans were defective in a way that the products they offer for sale to whites were not," he wrote.

But the suit made no such contention, Padova said, because "the mentholated products defendants sell to African Americans are just as defective and dangerous as the mentholated products they sell to whites."

The plaintiffs were also forced to concede that, while a much higher percentage of African American smokers than white smokers use mentholated cigarettes, "African Americans still comprise the minority of users of mentholated tobacco products," Padova noted.

Padova also said the plaintiffs "do not allege that defendants are offering the defective mentholated products only to African Americans; rather, plaintiffs contend that defendants are targeting African Americans with advertisements for mentholated tobacco products and, as a result, African Americans are more likely to choose mentholated products than are whites."

While the suit alleged aggressive advertising that compels African Americans to purchase defective products, Padova found that the tobacco companies' actions "are not coupled with a refusal or even a reluctance to sell non-mentholated tobacco products to plaintiffs, or even with a refusal or reluctance to sell mentholated tobacco products to whites."

The defense lawyers, Padova said, correctly pointed out that the plaintiffs concede that tobacco companies advertise their products to both African- American and white consumers, and sell their products to both African- American and white smokers.

As a result, Padova said, "the actual products and terms of sale are the same for African American and white consumers."

Copyright 1999 NLP IP Company -- American Lawyer Media.