Opposition to Effective Social Marketing: Lorillard Tobacco Company's Failed Attempt to Shut Down the American Legacy Foundation

Ellen Vargyas, JD
General Counsel
American Legacy Foundation

(pdf version)

The story of the Lorillard Tobacco Company's failed effort to shut down the American Legacy Foundation and its truth® youth tobacco prevention campaign offers an object lesson in how an aggressive and well-funded company can use the legal system in an effort to stop, or at least chill, effective public health communications. Importantly, it also shows that the interests of public health can prevail. Key lessons are the importance of courageous leadership, risk management and the recognition of the fact that the tobacco industry is not invincible.

The American Legacy Foundation

The American Legacy Foundation was created as a result of the 1998 Master Settlement Agreement (MSA) reached between 46 states, the District of Columbia and five territories, and the tobacco industry. The MSA directed that part of the states' monetary recovery would be used to create a Foundation charged with reducing youth tobacco use and undertaking programs to prevent diseases associated with tobacco use.¹ It created two funding streams for the new Foundation. The much larger stream consisted of payments to the National Public Education Fund. These payments were to be made for the first five years of the Foundation's existence and in years thereafter in which the collective market share of the participating manufacturers was at least 99.05% of the United States cigarette market.² Smaller Base Fund payments would be made for 10 years.³ The MSA further provided that the Foundation was to be governed by a board of directors composed of two governors appointed by the National Governors' Association, two state attorneys general appointed by the National Association of Attorneys' General, two state legislators appointed by the National Council of State Legislatures and five others, including public health experts, appointed by the first six.⁴ The Foundation, which became the American Legacy Foundation, was incorporated in 1999.

The MSA includes several restrictions unique to the Foundation. In particular it provides that the National Public Education Fund (NPEF) cannot be used for "vilification" or "personal attack":
"The National Public Education Fund shall be used only for public education and advertising regarding the addictiveness, health effects, and social costs related to the use of tobacco products and shall not be used for any personal attack on, or vilification of, any person (whether by name or business affiliation), company, or governmental agency, whether individually or collectively."⁵

"Personal attack" and "vilification" are not defined in the MSA, nor are they legal terms of art. The Foundation's board early on adopted rigorous standards and processes to optimize compliance and reduce risks. There was (and is) careful factual review of all ads as well as legal review consistent with board-approved standards. In addition, as discussed further below, a board committee has consistently been responsible for approving advertisements. Even so, because the meanings of personal attack and vilification were not spelled out, elements of risk to the Foundation inevitably remained.

truth®

The Foundation launched truth® in 2000; it was and still is the only non-industry sponsored national youth smoking prevention campaign in the United States. Peer-reviewed research establishes that truth® was responsible for approximately 22% of the decline in youth smoking between 2000 and 2002.⁶ A ground-breaking social marketing campaign, truth® was designed to accomplish exactly what the MSA had specified in its mandate to the Foundation: to prevent smoking among youth aged 12 to 17. truth® features fast-paced, hard-edged advertisements that present facts on the addictiveness, numbers of deaths and types of diseases attributed to smoking, the ingredients contained in cigarettes, the social costs of smoking and tobacco-related disease and the marketing practices of the tobacco industry. truth® ads do not "preach" at young people or tell them what - or what not - to do. Rather, truth® ads convey information in a blunt and sometimes humorous way that encourages teens to make informed choices about tobacco use.

truth® was based in substantial part on the Florida truth campaign, now defunct, which had been shown to be very effective in reducing youth tobacco rates in Florida (see Schum & Gould in this volume of the journal for more on the creation of the Florida campaign).⁷ Both the Florida campaign and truth® had their intellectual roots in the work of a panel of youth marketing experts convened in 1996 by the Columbia School of Public Health and funded by the Centers for Disease Control and Prevention.⁸ What came to be called the Columbia Expert Panel identified three critical elements for a successful youth tobacco prevention media campaign. First, noting teens' extreme brand-consciousness and the pervasiveness of tobacco brands, it called for the creation of a teen-focused non-smoking - or "counter" tobacco - brand. Second, it recognized that a teen-focused campaign must talk to teens in their own voice and not talk down to them. Third, the panel recommended that the counter-brand highlight the actions of the tobacco industry in marketing cigarettes, including its failures to be truthful about cigarettes' addictiveness and health effects.

The Dispute

The Lorillard Tobacco Company began its attacks on the Foundation in July 2001, with the first in a series of steadily escalating complaints about a then-airing truth® radio ad called "Dog Walker." The ad was part of the "Infect truth" campaign, a "sub"-campaign of truth®. The Foundation's research showed that many teens thought that a cigarette was simply tobacco rolled up in paper. "Infect truth" was designed to educate teens about the fact that many chemicals are added to cigarettes, in this case, urea. The obviously tongue-in-cheek ad portrayed a real phone call to Lorillard from a young actor who identified himself as a dog walker and then made a business proposition. Recognizing that cigarette companies put urea into cigarettes, he offered to sell Lorillard the urine from his dogs, which he explained also contained urea.

Lorillard began its campaign by approaching several radio stations and demanding that they not air the ad. Press reports suggested that it had success with at least one North Carolina station,⁹ but it quickly broadened its strategy. Lorillard next accused the Foundation's advertising agency, which had made the ad, of violating the laws regarding the taping of telephone conversations; the Lorillard employees had not been told they were being taped. Lorillard threatened to refer the ad agency to the criminal authorities.¹⁰ However, the ad fully complied with all relevant legal requirements, having been placed from and to one-party consent states. That is, in the states where the call originated and was received, the consent of only one party to the call was required to legally record it, and the caller had consented.¹¹

In an aggressive letter from Steven Watson, Lorillard vice president of external affairs, to Dr. Cheryl Healton, the Foundation's president and CEO, Lorillard then accused the Foundation of falsely suggesting in the ad that Lorillard "uses urine in the manufacture of its cigarettes" among a wide variety of other asserted malfeasances.¹² Lorillard made no bones about the fact that it viewed the statements in the ad as false. Watson stated that the Foundation had "chosen an approach of deception, vilification and untruth" and that the ad was "false and misleading." He stated point blank that "Lorillard does not add urea to its cigarettes."¹³ Lorillard also made these claims in the media, including on a Fox network television news show.¹⁴

The Foundation based the assertion that urea is added to cigarettes on the fact that urea is included in the 1994 composite list of additives to cigarettes provided by the tobacco industry to the federal government.¹⁵ In addition, urea is naturally occurring in tobacco.¹⁶ By return letter from its outside counsel, the Foundation asked Lorillard a series of specific questions regarding the presence of urea in its cigarettes. ¹⁷ Lorillard responded by, among other things, referring to the advertisement as "tripe" but did not acknowledge or respond to the questions about urea until months later. ¹⁸

In October 2001, Lorillard filed a motion for a declaratory ruling with the Federal Communications Commission (FCC), asking the FCC to rule that the Foundation violated an FCC regulation requiring that before recording a telephone conversation for broadcast or broadcasting such a conversation as it occurs, an FCC licensee must inform the parties to the call of the intention to broadcast. ¹⁹ Lorillard attached to its motion a sworn declaration from its director of research that "Lorillard does not add and has never added urea to its cigarettes. " The Foundation filed an opposition focusing on the fact that the regulation does not apply to it since it is not an FCC "licensee. " There was no response from the FCC until it denied Lorillard's motion five and a half years later in March 2007, with virtually no analysis of the claim. ²⁰

In November, 2001, Lorillard notified the Foundation that it intended to sue the Foundation and its advertising agency for defamation, unless the Foundation agreed to a series of demands. ²¹ Lorillard claimed that the Foundation's ad had falsely and defamatorily stated that Lorillard added dog urine to its cigarettes. At this point, Lorillard did respond to the Foundation's questions regarding the addition of urea to its cigarettes, denying that it added urea to its cigarettes and stating that it is "in fact true that the only urea that exists in Lorillard's cigarettes is that which 'naturally occurs in the tobacco leaf' from which those cigarettes were produced. "²² Although the ad did not in any way say that Lorillard added dog urine to its cigarettes, and the Foundation was quite confident that it was not defamatory, the Foundation was mindful of the inherent costs and risks of litigation. It entered into discussions with Lorillard to explore whether an out-of-court resolution could be reached that would be acceptable to both parties.

On January 18, 2002, Lorillard abruptly ended these discussions and informed the Foundation that it no longer intended to pursue a defamation claim. Instead, it gave the 30-day notice required by the MSA that it would bring suit against the Foundation on the grounds that much of the truth® campaign violated the MSA's prohibitions against vilification and personal attacks.²³

While Lorillard did not explain its reasoning for abandoning its defamation claim in favor of one under the MSA, there are several probable explanations. First, Lorillard may well have concluded that it would be easier to prove violations of the vilification and personal attack provisions than to prove defamation. Defamation, particularly when a public figure such as Lorillard is involved, is hard to prove. To begin with, in defamation cases the truth of the allegedly defamatory statement is a defense. While the question of whether Lorillard adds urea to its cigarettes was never definitively resolved and, as discussed below, the Foundation was never able to take discovery on the subject, an internal Lorillard email strongly suggested that urea has been added to the tobacco Lorillard uses in the manufacture of its cigarettes. The July 25, 2001, email from Dr. Christopher Coggins, a Lorillard research and development scientist, to Jordan Bressler, Lorillard manager of external affairs, and copied to Ronald Milstein, Lorillard's general counsel, and Haney Bell, Lorillard associate general counsel²⁴, states, "Urea has sporadically been used as tobacco fertilizer..."²⁵ This email was sent seven days after the Watson letter accusing the Foundation of lying about the addition of urea and also after the Foundation's response raising questions about the addition of urea to Lorillard's products.

In addition, because Lorillard would likely be considered a "public figure" for purposes of defamation law, it would have to have proved that the Foundation acted with "actual malice" in order for it to prevail on a defamation claim.   An organization is considered a "public figure" if it (1) occupies such a prominent position in society that it can be considered a public figure for all purposes; or (2) has thrust itself into a particular public controversy and is thus considered a public figure for purposes of that issue.²⁶ As a public figure, Lorillard would have had to prove both that urea was not added to its products, and that the Foundation either knew this or acted in reckless disregard of the truth.²⁷ This is a difficult test to meet. Even though the standards for proving vilification and personal attack remained undefined, Lorillard was making a strategic bet that they would be easier to prove than defamation.

Second, because truth is a dispositive question in a defamation case, the Foundation would have been able to conduct discovery into Lorillard's manufacturing processes in order to test Lorillard's assertions that it did not add urea to its cigarettes. Not only did Lorillard want to keep any information regarding its manufacturing processes far away from the Foundation, it may well have had trouble supporting its denials given the Coggins email.

Finally, an MSA-based claim would give Lorillard the ability to go after the Foundation's entire truth® campaign, burdening the Foundation with the financial and human resources costs involved in broad-based discovery, motions practice and possibly a lengthy trial and appeals process, frightening the Foundation into weakening the truth® campaign. All or some of these factors likely added up to making an MSA claim more attractive to Lorillard than a defamation claim.

The Litigation

Filing and Threshold Issues

Rather than wait for Lorillard to choose where the case would be tried - very likely in its home state of North Carolina - the Foundation's Board decided to preemptively file suit in the Delaware Chancery Court against Lorillard; the case was filed on February 13, 2002.²⁸ The Foundation chose Delaware because both the Foundation and Lorillard are Delaware corporations and also because Delaware courts have extensive experience with complex litigation. The Foundation asked the court to issue a declaratory judgment, i.e. , a ruling that Lorillard has no basis to sue it under the MSA, an agreement to which the Foundation is not a party. In the alternative, the Foundation asked the court to rule that its ads do not constitute vilification or personal attacks. A few days later, Lorillard sued the Foundation in North Carolina, claiming that the Foundation had violated the MSA.²⁹

Confirming the Foundation's view that Lorillard wanted to litigate the case in its home state of North Carolina, Lorillard then filed a forum non conveniens motion in Delaware asking the Delaware Court to dismiss or stay the Foundation's Delaware lawsuit in favor of the North Carolina case.³⁰ The general rule when there is a "race to the courthouse" is that the first-filed lawsuit determines venue, or where the case is tried. Lorillard argued for an exception to this rule, calling the Foundation's decision to file before the MSA's 30-day notice period had run "inequitable. "³¹ On April 29, 2002, the Delaware Chancery Court denied Lorillard's motion, holding that one Delaware corporation has the right to sue another Delaware corporation in the Delaware courts.³² The court then issued an order, agreed to by the parties, staying but not dismissing further action in the North Carolina case.

With the question of venue resolved, the Foundation filed a motion asking the Delaware Court to dismiss the case on the grounds that it cannot be sued under the MSA since it is not a party to the agreement.34 Because the right to bring suit is limited under the law, such threshold claims are often brought at the beginning of litigation. If the court determined that Lorillard had no right to sue the Foundation and this was upheld on appeal, the case would have been over at that point. However, on January 30, 2003, the Court denied the Foundation's motion, holding that through its acceptance of MSA funds the Foundation had adopted the MSA and therefore can be sued under the agreement.³⁵

Developments While the Threshold Question was Pending

There were two important developments while the question of whether the Foundation was subject to suit under the MSA was pending. In both, Lorillard maneuvered to up the ante in the litigation. First, Lorillard expanded the scope of the remedy it was seeking when it filed its answer and counterclaims.³⁶ As expected Lorillard denied all of the Foundation's allegations and asserted that it - Lorillard - was the injured party and was entitled to remedies from the court based on the Foundation's alleged MSA violations. Lorillard asked the court to issue a series of orders requiring the foundation to comply with its interpretation of "vilification" and "personal attack". It also requested that

"the Court enter an order requiring ALF [American Legacy Foundation] (a)to refund and return to Lorillard the NPEF and base Foundation payments made by Lorillard and/or (b) to refund and return to the [MSA] Escrow Agent all NPEF and base Foundation payments made by the participating manufacturers, including Lorillard."(emphasis added).³⁷

While Lorillard had previously represented that it did not want to destroy the Foundation,³⁸ it now revealed its end-game as an effort to shut the Foundation down. Its theory was that due to the myriad alleged MSA violations, the Foundation was no longer eligible to be the tobacco-control foundation defined in the MSA³⁹

Second, Lorillard filed a new lawsuit against the National Association of Attorneys General (NAAG), the Attorney General of Delaware and the State of Delaware.⁴⁰ Lorillard's apparent practical, as opposed to legal, theory was that if the Foundation were to prevail on its claim that it could not be sued under the MSA, either NAAG or Delaware should be legally responsible for the Foundation's activities. Because the Court ultimately determined that the Foundation itself was subject to suit under the MSA, this case was stayed and ultimately dismissed without a decision. However, Lorillard's gambit may well have paid off. That is, although the Court never discussed this issue, it may have been persuaded that Lorillard was right: It should be able to sue some entity over these issues, and the most likely party was the Foundation.

Discovery

With the decision that the Foundation could be sued under the MSA, Lorillard promptly launched the first of what would become massive and exceedingly burdensome and expensive discovery demands on the Foundation made over the course of two years. Discovery is the phase of litigation when parties seek information from each other, using the coercive power of the court to compel responses. It is designed to develop the facts necessary in the event of a trial and also to narrow or eliminate factual disputes. In this case the discovery propounded against the Foundation included hundreds of interrogatories, written questions that had to be answered in writing under oath; dozens of document requests that required the Foundation to review over a million documents (including many, many internal e-mails) and produce over 300,000 pages to Lorillard; and depositions, oral examinations under oath, of board members, employees and contractors. As is typical, there were numerous disputes between the parties regarding what had to be answered or produced and whether the answers or productions were adequate. Adding to the burden and costs, some of these disputes ended up in hotly contested motions before the court.

In the end, almost all of the discovery burden was born by the Foundation. But in order to defeat the Foundation's ability to take meaningful discovery against it, Lorillard relied on a "procedural maneuver"⁴¹ that significantly affected both the tenor and the outcome of the case. As was discussed earlier, in the run up to the litigation Lorillard had proclaimed that the Foundation's statements that Lorillard added urea to its cigarettes were false and misleading. The Foundation, as was its right, served discovery to probe the truthfulness of Lorillard's claims. Lorillard objected to the discovery, and the Foundation filed a motion to compel an answer. In response and at odds with its earlier position including the sworn statement submitted to the FCC, Lorillard took the unexpected step of conceding for the purposes of the litigation that all of the facts in the Foundation's ads were true. ⁴²

Lorillard's "maneuver" was effective in shutting down the Foundation's discovery on the urea question, and with that on Lorillard's manufacturing processes and the veracity of its denials about adding urea to its cigarettes. Since Lorillard was not disputing the statement in the ad that urea was added to its cigarettes, there was no longer any basis for the Foundation to take discovery on these questions. However, at the same time, Lorillard virtually had to take the next step - which it did - of arguing that truth was irrelevant to the question of whether or not an ad constituted vilification or a personal attack.⁴³ That is, Lorillard took the position that the MSA prohibited the Foundation from making completely true statements about the tobacco industry if they were critical of the tobacco industry or a tobacco company. It was a high-risk strategy for Lorillard, which did not succeed.

Chancery Court Decisions In Favor Of The Foundation

Summary Judgment Decision. Upon the conclusion of discovery, the parties filed cross-motions for summary judgment. Trials are necessary to resolve disputed issues of fact but not disputed questions of law. They provide an opportunity for the decision-maker - judge or jury, depending on the case - to hear testimony and make credibility determinations. Summary judgment, by contrast, is a procedural mechanism involving written briefs and oral argument to resolve cases where there are open questions of legal interpretation but not of fact. In this case, particularly with Lorillard's decision not to challenge the accuracy of any Foundation advertisements, there were no material factual disputes. Rather, the debate between the parties focused on the meaning of the MSA's prohibition of vilification and personal attack.⁴⁴

In its summary judgment briefs, Lorillard hewed to its extreme position that the MSA's vilification and personal attack clause prohibits the Foundation from making any critical statements of tobacco companies or the tobacco industry, even it they are completely true. It offered the following as the correct definitions of the terms:

"A personal attack is the use of words or acts - whether by name or other identifying reference, (i.e. , "personal") - to criticize, negatively depict, or negatively comment about, no matter whether true or false (i.e. , "attack").

"Vilification is words or acts, spoken or taken by a person or entity, which have a tendency to degrade, disparage, or lessen the standing of another. Words or acts "vilify" another when they have a tendency to cause third parties to view or think less favorably about the person or entity at whom the words or acts were directed. It is irrelevant to this analysis whether the words or acts are true or false. "⁴⁵

The Foundation took a very different approach, strongly advocating that the MSA did not restrict its ability to tell the truth to American youth about the tobacco industry's actions. It offered the following definition:

"Through the prohibition against "vilification," [the MSA] forbids advertising that strikes out at tobacco companies or their employees with extreme intensity and contains untruthful information. Through the prohibition against "personal attack[s]," it bars advertising that is hostile or aggressive in tone and addresses subjects that are strictly private - individual characteristics unrelated to the person's public role. "⁴⁶

Three amicus curiae (friend of the court) briefs were filed in support of the Foundation. Pursuant to court rule, potential amici must first file a motion with the court seeking permission to file their brief. Lorillard opposed the motions but the court allowed the briefs to be filed. Thirty-one states and two territories; the Citizens' Commission to Protect the Truth, composed of all living former secretaries of Health and Human Services and Health Education and Welfare, Surgeons General and Directors of the CDC; and 19 leading public health organizations all argued that the Foundation had not violated the MSA as well as that truth® was an extremely important and successful public health campaign.

When the summary judgment motions were argued in the Delaware Chancery Court, nearly the entire board of directors of the Foundation traveled to Wilmington, Delaware, to attend the argument in a strong show of support.
The Chancery Court handed down its decision on August 22, 2005, ruling that none of the Foundation's ads had violated the MSA's prohibitions against vilification and personal attack.^{47 It explained:}

"None of the ads subject the employees to the type of contemptuous language contained in other case law discussing vilification. There are no scurrilous and vitriolic attacks. There is no cruel slander. There is no social ostracism. There is no public ridicule, traduction or calumny. Although the employees may be described, either explicitly or implicitly, as liars, greedy executives, or authors of embarrassing documents, the ads do not vilify them. "⁴⁸

The court roundly rejected Lorillard's argument that truth is irrelevant to the question of vilification.
"Lorillard's position that the truthfulness of the ad does not factor into the court's decision is incorrect. For example, if someone were to call someone else a thief, the court should look at the record evidence of whether the person had been arrested or convicted of being a thief before determining whether the accusation might be vilifying. "⁴⁹

Moreover, it recognized that
"Lorillard is a member of an industry that has been under attack since the 1960s, when the first warnings from the Surgeon General were published. In order to conform to federal law, Lorillard has for years printed warnings about the adverse health effects of smoking on its own cigarette packaging. Effectively, Lorillard has for years been running an ad campaign on cigarette packaging that disparages, at least implicitly, smoking, the tobacco industry, and Lorillard. "⁵⁰

The court also noted the care the Foundation took in reviewing and approving ads.⁵¹
Decision on Lorillard's Motion for Reargument. Immediately following the decision, Lorillard filed a motion for reargument, asking the court to reconsider its decision with regard to four ads, including the "Dog Walker" ad that had set off the entire dispute. On October 3, 2005, the court denied Lorillard's request that, notwithstanding its earlier decision, it find that these four ads violated the MSA.⁵²Of particular interest, the court clarified its earlier conclusion that "Dog Walker"did not violate the MSA:

"Although the advertisement is undoubtedly insulting in its invocation of "dog urine" as a potential source for urea, the offensiveness of any criticism of Lorillard is tempered by the fact that the advertisement's goal is to educate potential consumers, particularly youths, about the unappetizing range of ingredients included in all cigarettes. Dog Walker does not insult Lorillard or its employees specifically, nor does it insinuate that Lorillard spices its own products with urea while other companies do not... The fact that urea is actually used in cigarettes tips the delicately balanced scales in favor of ALF. "⁵³

Appeal to the Delaware Supreme Court

Lorillard quickly exercised its right to appeal the decision to the Delaware Supreme Court. The Foundation then cross-appealed the earlier decision that it could be sued under the MSA. Once again, numerous states, public health groups, and the Citizens' Commission to Protect the Truth filed amicus curiae briefs on the Foundation's behalf, again over Lorillard's objections

At this juncture, three tobacco companies, Philip Morris, R.J. Reynolds and Brown & Williamson, sought to file an amicus brief in support of Lorillard's view that the MSA prohibits the Foundation from making any criticism of the tobacco industry or tobacco companies at all.   In the normal course, potential amici file at the same time that the briefs are due for the litigant on whose behalf they are filing. This gives the opposing party and its amici an opportunity to reply to their arguments. In this case, the three tobacco companies sought to file their brief nearly two months after Lorillard's opening brief was filed. The Delaware Supreme Court denied their motion on the grounds that it was too late.⁵⁴ It is curious that the brief was filed so late and no explanation was offered. Certainly, the tobacco companies, who are represented by some of the country's leading law firms, were familiar with the filing rules.

The appeals were argued before the full five-member Court. On July 17, 2006, almost exactly five years after the Foundation's dispute with Lorillard began, the Delaware Supreme Court unanimously held that none of the Foundation's advertisements violated the MSA.⁵⁵ Indeed, the Court relied on the very dictionary definitions Lorillard had invoked in support of its position to reject them out of hand.

"It is apparent from the dictionary citations provided by Lorillard that a "personal attack" in the context of Section VI [of the MSA] is a verbal assault conducted in an invidious, disparaging, belligerent, offensive, and fiercely or severely critical manner. Likewise, the meaning of "vilification," according to Lorillard's own dictionary citations, is a statement that is slanderous, defamatory, or abusive that unjustly denounces its target. The core ordinary meaning of vilification is a denouncement that is both unfounded and abusive or slanderous. "

"With the boundaries established by Section VI of the MSA in mind, we turn to whether the advertisements before us violate that provision. They do not. The advertisements are not invidious, disparaging, offensive, belligerent, nor fiercely or severely critical. Nor are they denouncements that are both unfounded and abusive or slanderous. "57

The Foundation and truth® were completely vindicated.

The Court also affirmed the lower court's decision that the Foundation can be sued under the MSA. With the strong opinion on the merits of the case, however, the Foundation actually was in a better position with this outcome on the threshold procedural question. If the court had found that the Foundation was not properly sued, it would also have vacated the lower court's decision that the Foundation had not violated the MSA. This means that the decision would have been essentially rendered void. As it turned out, the Foundation has a powerful opinion on which to rely, with full precedential value, that the truth® campaign violates neither the vilification nor personal attack provisions of the MSA.

Lessons Learned

It is hardly a secret that Big Tobacco is aggressive and well-financed and often has used litigation, both offensive and defensive, to advance its business goals. The principal lesson of the saga of American Legacy Foundation v. The Lorillard Tobacco Company is that it is possible to defeat the tobacco companies, and other powerful and well-funded adversaries, at their own game. But there are also important lessons on effective strategies that can enhance the likelihood of success.

First, organizations must carefully determine the amount of risk they are willing to take and then manage that risk. The Foundation knew from the very beginning that the more successful its advertising campaigns were the more likely it was that one or more tobacco companies would come after it. It understood that litigation risk was inherent in an effective youth tobacco prevention public education campaign given the evidence about what type of advertising works with this age group; it made a conscious decision not to be deterred from designing and launching a campaign consistent with the lessons of the best research and thinking available. At the same time, the Foundation was careful to avoid unnecessary risks. It recognized that MSA compliance was essential and therefore instituted rules and processes to maximize compliance, even in the face of vague and undefined standards. It required rigorous factual substantiation for all of its advertisements. It put in place board approval of advertisements. It assured that its campaign pursued a carefully articulated and well-supported mission and strategy.

Second, the courage and commitment of the Foundation's governing body and chief executive officer are instrumental elements of success. The Foundation's board of directors and president/CEO played key roles in shaping the direction of and assuring the integrity of the truth® campaign, from its inception and throughout the duration of the litigation. They made the critical decisions regarding the litigation and did not waiver from them. The Chancery Court was plainly impressed both by the Board's involvement and the processes it implemented to assure legal compliance. Most importantly, the Foundation's leadership did not let the threats or the litigation itself distract them from the Foundation's mission.

Third, strategists must stay mindful of and plan for the financial implications of litigation. Where possible, an organization that has decided to accept legal risk in order to fulfill its mission should create a legal contingency fund. If this is not possible, it can create relationships with law firms that would be willing to provide legal representation on a pro bono basis. If it is state- or university-affiliated it should explore whether legal services would be available through those relationships.

Finally, it often takes a village. The many states and public health organizations that supported the Foundation through their amicus curiae briefs were an important part of the winning formula.

The tobacco companies' carefully constructed aura of invincibility is developing significant cracks. In addition to the Foundation's victory, the U.S. Justice Department has achieved major success in its RICO case against the tobacco companies,⁵⁸ California successfully defended an attack on its advertising campaigns brought by Lorillard and R.J. Reynolds,⁵⁹ and state attorneys general have effectively enforced various provisions of the MSA.⁶⁰ However, no one should be lulled into thinking that Big Tobacco is in retreat on the legal front. The tobacco companies are appealing the adverse decision in the Justice Department case, continue to find success in opposing the certification of tobacco-related class actions⁶¹ and have scored victories against the assessment of punitive damages.⁶² In order to remain viable, public health campaigns with an adversary such as the tobacco industry must thoroughly understand their opponents' tactics and plan carefully to prevail.

Footnotes