It’s difficult to see through the smoke surrounding Lorillard Tobacco Company’s recent lawsuit against the anti-smoking American Legacy Foundation.
Lorillard, the nation’s fourth largest cigarette maker, sued ALF in Wake County Superior Court in North Carolina on Feb. 19. The suit charged that ALF’s anti-smoking campaign “included personal attacks on companies and individuals” and generated emails—to tobacco executives—described as “vitriolic, hateful and personal attacks,” according to AdAge.com.
The suit maintained that ALF had violated terms set forth in the 1998 Master Settlement Agreement. The MSA was an agreement between 46 U.S. states, 5 U.S. territories and the tobacco industry.
It “resolved lawsuits filed by the attorneys general [in 46 states] against the tobacco industry and provided the states funding intended for tobacco prevention and control,” according to ALF’s Web site. “The agreement required tobacco companies to take down all billboard advertising and advertising in sports arenas, to stop using cartoon characters to sell cigarettes and to make many of their internal documents available to the public.”
Furthermore, the MSA actually resulted in ALF’s creation, which adds another dimension to the unfolding legal story. ALF, in its suit against Lorillard filed Feb. 13 in Delaware, has maintained that not only is its anti-smoking campaign effective and legitimate, but that Lorillard is “powerless to sue it for violating the settlement, since the organization is only a beneficiary of the agreement, not a party to it,” according to the New York Times.
“We don’t believe that Lorillard has any basis under the settlement to even bring any enforcement,” Patrick J. Carome, ALF lawyer, told the Times.
Nevertheless, Lorillard is quick to point out that the MSA forbids personal attacks and vilification. Claiming such strategies were in use, it threatened suit in January.
ALF vehemently denied the allegations then and now.
“The truth campaign has not engaged in personal attacks or vilification of Lorillard or anyone else,” said Dr. Cheryl Healton, ALF president and CEO, in a January press release. “Anyone who has seen truth ads knows they educate young people about the addictiveness, health effects, and social costs of tobacco, which is exactly what the MSA says they must do.”
In fact, legal experts have said it’s difficult to determine what the MSA allows and prohibits.
“As you try to understand what the master settlement actually prohibits, you always discover things that are ambiguous and could be clearer,” Dennis Eckhart, a California assistant attorney general, told the Times. “There are a lot of open legal questions.”
There are other types of questions as well, like where truth-telling ends and vilification begins.
“Is the truth campaign actually true?” said William H. Sorrell, chairman of the tobacco committee of the National Association of Attorneys General, in the Times. “If the legacy foundation is somehow violating the settlement, we should know that. But any industry that is responsible for the deaths of more than 400,000 people a year is doing some pretty ugly things. And to point those out, is that vilification?”
Healton told AdAge.com that ALF’s anti-smoking campaign—fronted best by “the truth” ads and Web site—”is education, not vilification.”
But Big Tobacco isn’t buying.
“They clearly believe that this is their way of effectively communicating with young people,” Lorillard spokesman Steve Watson told Associated Press. “We strongly believe you can be edgy and their ads can be different, but you cannot and should not mislead the public with false attacks.”
“This type of advertising clearly goes beyond the bounds of ethical education and effective advertising,” he told AP.
Cliff Vaughn is BCE’s associate director.