Lorillard Tobacco Company on Liberty in America -- Including Liberty to Re-Start Litigation Against Itself?

Interesting paid-advertisement op-ed by Lorillard Tobacco Company in the Opinion section of today's Wall Street Journal.  Unfortunately, I can't find the ad online, so I'll have to type from my paper copy. 

The headline is "No Choice, No Freedom."  Lorillard begins by issuing what is a clarion call for any product-liability libertarian like me (and for disclosure, I represented R.J. Reynolds Tobacco Company in the 1990s).  From the ad:

Freedom is the right to choose -- perhaps the most powerful act in our democracy.  And nowhere else was that awesome responsibility better displayed than in the recent presidential election, the ultimate act of democratic choice.

Indeed, Americans know and understand the importance of choice.  Choice underlies the values of our nation.  It is the essence of individual character and ultimately leads to empowerment and engagement.  We are all better off with it -- and oppose those who want to limit it.

Choice, of course, demands responsibility.  Where that responsibility rests is often the crux of vigorous debate.  Government reform and regulation have appropriate places in our society.  But that government power to regulate must be balanced against misguided zeal that has the potential to restrict our freedom of choice.  Taken too far, such an effort may turn negative and could threaten the basic concept of liberty that Americans have protected for more than 230 years.

It is in that context that Americans should be ever vigilant about the government's encroachment on people's right to choose the legal products they want to enjoy.  Should Congress or an Executive Branch department or agency dictate whether we should drink diet soda or regular soda?  Drive only certain types of cars?  Eat in only certain types of restaurants?  We believe the answers to all of those questions is "no."  For the government to seek to eliminate that choice is troubling.  For it to succeed could be dangerous, and would stamp out the core of the American spirit.

Well said, indeed.  Then Lorillard turns to the specific issue -- Menthol cigarettes -- and here's where things get interesting:

With this in mind, we should consider a proposal, that some are advocating, to ban the use of menthol in cigarettes.  They claim that menthol cigarettes confer a higher risk for tobacco-related diseases, or that menthol cigarettes are more addictive than non-menthol cigarettes. 

And then the key sentence (italics added):

Yet, the existing body of scientific evidence does not support those conclusions.

Is Lorillard trying to re-start tobacco litigation against itself?  Smokers who in the future get cancer or other illnesses and who have smoked Menthol cigarettes may sue for fraud and allege that they relied on Lorillard's comment that Menthol is not more dangerous than regular cigarettes.  Such potential plaintiffs might hope to cull enough evidence of Menthol's additional danger to survive summary-judgment and put their claims before a jury that, despite voir dire attempts to exclude overt bias, might still be inclined against Lorillard from prior tobacco litigation and settlements.  Plaintiffs would still also have to prove reliance on the statements, but the failure of smokers in the last litigation to show individual reliance didn't prevent a litigation firestorm, and plaintiffs' counsel have experimented (although so far lost) with arguments that individual reliance is not needed where the background public knowledge is changed.

Lorillard certainly should press its view before Congress that Menthol is not more dangerous that non-Menthol.  But as a strategic matter, do they need to take out a mass-media ad to the public?  Such an ad likely does little to create additional support (most Journal readers probably supported them already), but it does open Lorillard up to possible litigation.

And then the ad continues in an appeal to balanced scientific inquiry (and due consideration that Menthol might not be more dangerous) that might be seen by some as vaguely reminiscent of the 1954 Frank Statement that figured prominently in the last litigation.  From today's ad:

Before Congress attempts to ban menthol cigarettes, which are smoked by nearly one-third of all smokers, they have a responsibility to know the facts and have all the evidence needed to make such an important decision.  That is why Lorillard advocates for a proper scientific review based on sound information and scientific evidence and data.

Finally, the ad returns to apply its earlier pro-choice sentiment to tobacco:

Young people should not smoke, and we support efforts to keep them from starting.  But, if adults, who can and should assess the risks of smoking, choose to smoke, then shouldn't they have the freedom to choose whether to smoke regular or menthol cigarettes?

We respect every individual's position on whether or not to smoke.  We trust that this respect is reciprocal and the right of Americans to choose the legal products they want is equally cherished.

Setting aside the debate on the dangers of Menthol cigarettes, my verdict is that Lorillard is right on principle, wrong on strategy.

BGS