JIM LEHRER: Now, a legal fight over California's anti-tobacco ads. Jeffrey Kaye of KCET-Los Angeles reports.
SPOKESMAN: Everybody picks on me. Nobody likes me!
SPOKESMAN: Well, you can't really blame them. You've killed and crippled millions of Americans.
JEFFREY KAYE: In California, anti-smoking ads don't just offer health warnings; they take on the tobacco industry.
ANNOUNCER: They spend millions trying to grab your attention and push you into smoking.
JEFFREY KAYE: For 13 years, commercials put out by the state government have struck out at tobacco executives, depicting them as heartless, cynical, and manipulative.
ANNOUNCER: They've said that nicotine is not addictive.
JEFFREY KAYE: But now the tobacco industry is fighting back by suing the state of California. R.J. Reynolds Tobacco, the maker of Camel and Winston, together with Lorillard, which makes Kent cigarettes, want a federal court to ban the state's anti-tobacco industry ads. San Francisco lawyer Joe Escher represents Reynolds Tobacco.
JOE ESCHER: The ads aren't focused on getting people to understand that smoking has risks; the ads are focused on blaming the tobacco companies for the health consequences of smoking.
JEFFREY KAYE: What's wrong with blaming the tobacco companies, the industry, for what they do?
JOE ESCHER: Well, it's... it's not... what does the industry do? The industry supplies cigarettes to a market, and people smoke them-- that's one reason it's wrong. The second reason it's wrong is because it's wrong to make them pay for it directly.
JEFFREY KAYE: The ads are funded mostly by smokers, who pay a 25- cents-a-pack tax on cigarettes. The tax was approved by California voters in 1988. All the ads are approved by top state officials, including the head of the California Department of Health Services, Diana Bonta. Her Department is responsible for the ad campaign, which Bonta says is based on fact.
DIANA BONTA: We talk about the truth, that they are marketing a product that causes disease, injury, and deaths.
JEFFREY KAYE: Bonta says smoking in California has decreased as a result of the anti-tobacco ads.
DIANA BONTA: And as a consequence, we know that our cancer rates are decreasing, that our mortality is decreasing, that the smoking consumption is decreasing, and that there are good results of actually having our advertisements on the air.
ANNOUNCER: Gentlemen, gentlemen! The tobacco industry has a very serious multi-billion-dollar problem. We need more cigarette smokers, pure and simple. Every day, 2,000 Americans stop smoking, and another 1,100 also quit-- actually, technically, they die.
JEFFREY KAYE: The anti-industry theme was a foundation of the campaign from its inception in 1990. The producer of the first ad was Paul Keye.
ANNOUNCER: What do they say, "vilifying"? How in the world do you vilify a villain?
JEFFREY KAYE: Keye is unapologetic about turning the spotlight on the industry.
PAUL KEYE: When you could say, "there's the tobacco industry," everybody else in the equation moved to the other side. Parents versus children? Forget it. Teachers versus students? Forget it. Smokers versus nonsmokers? All these traditional little compartments all crumbled because there's really only one person on the other side of the equation, and that was the tobacco industry.
SPOKESMAN: We're not in this business for our health. ( Laughter )
JEFFREY KAYE: Colleen Stevens heads up the media campaign. She says ads which target the industry are more effective than ones that just say smoking is unhealthy.
COLLEEN STEVENS: We have done 13 years' worth of focus groups, and we really don't find any evidence whatsoever that just telling people "don't smoke" to be an effective message. The more educated people are about the techniques and the tactics the tobacco industry uses, the more... the madder they get, and the more likely they are to want to address that by not smoking.
JEFFREY KAYE: For the tobacco industry, billboard ads are banned.
SPOKESMAN: Call for Philip Morris!
JEFFREY KAYE: So, too, are broadcast commercials, but for decades, tobacco companies sought to portray cigarettes as harmless... ..
COMMERCIAL: -- like ( clap, clap ) cigarette should!
JEFFREY KAYE: ...Sexy, and hip. California's messages have often mimicked such tobacco industry advertising conventions. One ad turned the virile Marlboro Man into a cowboy with a deadly disease. Others stood the smoker-as- romantic-lover image on its head. Another questions announcements by tobacco companies, such as this one by Lorillard, warning youth of the dangers of using its products.
ANNOUNCER: No. Besides, my parents would freak.
JEFFREY KAYE: In response, a California ad accuses tobacco companies of using reverse psychology.
SPOKESMAN: I mean, you tell the average teenager not to smoke, and let's face it, what's he going to do?
SPOKESMAN: Of course-- they're going to want to smoke.
SPOKESMAN: Of course!
JEFFREY KAYE: That's just one of the industry-bashing commercials that crosses the line by depicting fictional tobacco executives, according to Reynolds' lawyer Escher. What's wrong with that?
JOE ESCHER: Well, it's completely fictional. That's one thing. The ad is a dramatization of a... of fictional advertising executive for a tobacco company planning an anti-youth-smoking campaign that is really intended to get kids to smoke. I mean, that would be a very terrible thing to do, and there isn't the slightest evidence that that's true. There's no kind of warning or logo at the end of this that indicates that it's a dramatization.
JEFFREY KAYE: You're saying there's no evidence that a meeting like this ever took place.
SPOKESMAN: None. None whatsoever.
WOMAN: Every single ad that we have ever made we have to substantiate. So all the claims in our ads are based on published research, are based on actual internal documents from the tobacco industry. So these are fact-based ads.
JEFFREY KAYE: Some of those facts are dug up by marketing expert Tess Boley Cruz. She and a team at the University of Southern California study tobacco advertising.
SPOKESPERSON: This is the new Winston ad. It's a whole beach scene.
JEFFREY KAYE: Most marketing by tobacco companies occurs at the stores which sell their products. Cruz says she is troubled by what she sees as persistent efforts by some tobacco companies to appeal to young people.
TESS BOLEY CRUZ: Around the candy there's tobacco shelving and advertising, often within three feet of candy. So it's where the children want to linger, and then the tobacco ads are right there, you know, pushing this product.
SPOKESMAN: Look at that-- the poster is perfect.
JEFFREY KAYE: The state uses Cruz's research to try to call attention to some industry practices.
SPOKESPERSON: It's about building a lifetime relationship-- branding 101.
JEFFREY KAYE: R.J. Reynolds Tobacco would discuss only legal matters, not marketing, for this story. Lawyer Escher says a key issue is the fact that surtaxes paid by cigarette distributors are used against them.
JOE ESCHER: A lot of the people who work for the Department of Health Services are zealots against smoking. Well, that's fine. They can be zealots against smoking, but that doesn't mean that they can force the tobacco industry to pay for ads which are demonizing against the tobacco industry, and especially ones that are as false as those.
JEFFREY KAYE: Escher says, by turning Californians against the tobacco industry, the negative ads are prejudicing juries against cigarette companies, many of which are facing civil suits over health issues.
JOE ESCHER: Thomas Jefferson said it's sinful and tyrannical to make a man pay for the propagation of speech with which he disagrees. And really no other litigant in the entire history of the society has ever had a $200 million ad campaign run by the government against it to try and get them to lose civil lawsuits. Nothing like that has ever happened before.
JEFFREY KAYE: The cigarette companies' challenge to California's anti-industry media campaign is moving into a federal appeals court. A lower court judge dismissed the original lawsuit.