One tobacco maker, Philip Morris Cos., maintain the list of proposed restrictions is so obviously illegal that it will likely ask a judge to dismiss the case, originally filed by the Clinton administration, that seeks payment of federal government costs for treating tobacco illnesses.
"It's outrageous. It violates our constitutional rights to freedom of speech and it's outside the scope of the Department of Justice authority," said Mark Smith, a spokesman for Brown & Williamson Tobacco Corp.
The government revealed its demands in pretrial discovery of the suit, filed in the U.S. District Court of the District of Columbia and slated for trial next year.
The government responded to tobacco companies' request for what it sought from the suit with a list of marketing curbs. Among the practices the Justice Department wants banned: all point-of-sale advertising and trade promotion; any themes or logos that might appeal to youth; packaging featuring colors; any remaining product sponsorships; use of the words "light," "ultra light," "low tar," and "mild" for tobacco products; and direct mail to any household with kids under 18. It also asked that 50% of all ads and all packaging be devoted to graphic health warnings and the tobacco companies be forced to fund research and marketing of less-hazardous cigarettes.
Bill Ohlemeyer, VP-associate general counsel of Philip Morris Cos., said the remedies the government is seeking violate existing laws and conflict with recent Supreme Court decisions. "For government lawyers to ask us to alter the health warnings on cigarette packs is really pretty absurd," he said, noting that the warnings are set by law.
Ad groups are lobbying members to write the White House and Justice Department urging reconsideration of the remedies.
"It's kind of shocking," said Dick O'Brien, exec VP of the American Association of Advertising Agencies, which warned that it and other ad groups might be prepared to take court action if necessary.
Jeff Perlman, American Advertising Federation exec VP, said the remedies "are just the same sort of unconstitutional provisions that Congress has repeatedly beaten back. Our position has always been that you can advertise a legal product to a legal audience. This is over the line."
contributing: cara b. dipasquale