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On Thursday, the Motion Picture Association of America as well as its studio members and the National Association of Theatre Owners were hit with a proposed class action lawsuit that, if accepted by a judge and not barred by the First Amendment, would greatly expand the legal responsibilities of the filmmaking industry.
The topic of the complaint brought in California federal court by Timothy Forsyth and others similarly situated is Hollywood’s film rating system and how minors are exposed to creative works featuring cigarette smoking.
The lawsuit points out that since at least 2003, Hollywood has known that tobacco imagery in films rated “G,” “PG,” and “PG-13,” is one of the major causes of children becoming addicted to nicotine. Disney, Paramount, Sony, Fox, Universal and Warner Bros. are said to have been given recommendations from health experts at leading universities throughout the country as well as the American Lung Association, the American Heart Association and the American Public Health Association, and yet are allegedly continuing to stamp “their seal of approval” on films meant for children that feature tobacco imagery.
Among the films cited are Spectre, Dumb and Dumber To, Transformers: Age of Extinction, X-Men: Days of Future Past, The Amazing Spider Man 2, The Hobbit: The Desolation of Smaug, Iron Man 3, Men in Black 3 and The Woman in Black.
According to the complaint, “From 2003 when the defendants were notified that exposure to tobacco imagery in films causes children and adolescents to smoke, through 2015, youth-rated movies recruited approximately 4.6 million adolescents in the United States to smoke, of which approximately 1.5 million are expected to die from tobacco-induced diseases in years to come. And, at current rates, if defendants continue their current practice of certifying and rating films with tobacco imagery as suitable and appropriate for children and adolescents under the age of seventeen unaccompanied by a parent or guardian, defendants’ conduct will cause an additional 3.2 million American children alive today to smoke, and one million of those children to die prematurely from tobacco-related diseases including lung cancer, heart disease, stroke and emphysema.”
The lawsuit demands a declaratory judgment that the industry’s film ratings practices amount are negligent, false and misleading and a breach of fiduciary and statutory duties. The lawsuit also aims for an injunction where no films featuring tobacco imagery can be given “G,” “PG” or “PG-13” ratings.
Here’s the full complaint. The plaintiffs are being represented by Jeffrey Keller at Keller Grover.
In the meantime, the lawsuit will very likely provoke a First Amendment defense and the discussion will likely turn to whether the ratings system is improper guidance towards parents or part and parcel of the creative endeavor of making films. Most of the legal challenges to date have concerned the application of ratings to certain films — and very often it’s the producer of an R-rated, X-rated or NC-17 rated film who is objecting. For example, in the early 1990s, Miramax went to court against the MPAA to challenge the allegedly arbitrary nature of an R rating given to Pedro Almodovar’s Tie Me Up! Tie Me Down! The rating survived a legal attack.
Although it only nodded to ratings, the Supreme Court in 2011 decided to strike down a California law banning violent video games to children with the advisement that restrictions on speech are invalid without a compelling government interest. If the latest case makes it past motions to dismiss, the line of attack that ratings potentially rise to negligence could open up a whole new range of lawsuits blaming Hollywood for helping cause gun deaths and other social calamities.
The modern movie rating system dates back to 1968 after Jack Valenti was appointed the president of the MPAA. At the time, Hollywood’s so-called “production codes” were slipping away, but Valenti aimed to replace a system of censorship with one encouraging transparency and self-regulation. The system is considered “voluntary,” though compliance has been strongly enforced over the years. In 2007, smoking was added as a factor in the film rating process. On the MPAA’s website, the industry association touts a recent survey indicating that 93 percent of parents find film ratings helpful in making movie choices and 80 percent of parents agree that the rating system is accurate in the classification of movies.
In response to the lawsuit, the MPAA gave The Hollywood Reporter this comment:
“For almost 50 years, the MPAA’s voluntary film ratings system has provided parents with advance information about the content of movies to help them determine what’s appropriate for their children. This system has withstood the test of time because, as American parents’ sensitivities change, so too does the rating system. Elements such as violence, language, drug use and sexuality are continually re-evaluated through surveys and focus groups to mirror contemporary concern and to better assist parents in making the right family viewing choices. And since 2007, the ratings have taken into account depictions of tobacco use; accompanying descriptors provide additional information on this subject.
While we have not been served with the complaint in this lawsuit and thus will not comment on it specifically, we are confident that the courts will recognize the MPAA’s First Amendment right to provide information to parents so that they may make appropriate moviegoing decisions for their children.”
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