FKSA Represents Viacom as Amicus in Anti-Tobacco Advertising Case

January 27, 2014

On January 27, 2014, Friedman Kaplan filed an amicus brief on behalf of Viacom Inc. in U.S. v. Philip Morris USA Inc., et al. (D.D.C.) related to implementation of a court order mandating that the tobacco company defendants make certain corrective statements on television as a remedy for past deception. Under a proposed consent order submitted to U.S. District Judge Gladys Kessler, the tobacco companies would be required to run corrective television ads five times a week for a year during "prime time" (7:00 to 10:00 p.m.) on CBS, ABC, or NBC.

Viacom's amicus brief urges the Court to deny the motion to approve the proposed order, observing that the tobacco companies should be required to target their corrective statements to young adults including young African Americans - the same groups they had targeted with their deceptive advertising and marketing campaigns. Viacom argues that much of the programming on CBS, ABC, and NBC during the proposed time period is not geared to reach the youth and African-American demographics.

By contrast, Viacom's networks MTV®, MTV2®, VH1®, Comedy Central®, and BET® are specifically targeted to, and in fact reach, young adults including young African-American viewers. Moreover, Viacom's networks have long served as successful conduits for similar messages concerning the health and wellness of these populations and are a natural fit to achieve the purpose of the Court's remedy. Viacom also argues that using the same ad dollars needed to run the spots on CBS, ABC, and NBC to purchase spots on Viacom's networks instead will be far more effective, because the same advertising "spend" will deliver significantly more exposure of the corrective statements to a young adult audience that includes young African Americans.

In its amicus brief, Viacom requests that Judge Kessler find that Viacom's networks are appropriate vehicles for the corrective statements and direct the parties to conduct a comprehensive inquiry into the most effective distribution of the corrective statements to the target audiences. Alternatively, Viacom requests that the Court modify the proposed consent order to require the tobacco companies to utilize 20% of their advertising "spend" on MTV, MTV2, VH1, Comedy Central, and/or BET, which would target young and African-American consumers and potential consumers and therefore would more effectively address the tobacco companies' wrongful conduct.

Litigation partners Emily A. Stubbs and Kent K. Anker and associate Christopher M. Colorado are representing Viacom.