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The court agreed that the employers plan structure met ERISA requirements because it provided plan participants the opportunity to avoid the surcharge each year by completing a tobacco cessation program and retroactively refunding the surcharges to those who completed the program by a certain deadline

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Ongoing Search for Tobacco : Persistent efforts to find tobacco products or places to smoke, reflecting a strong dependence and compulsive use

In addition, they argued against the ban on publicizing relative risk claims about their products, which would apply to light cigarettes and various forms of smokeless tobacco on First Amendment grounds