Ironically, by erupting over a change in the amount of money requested for the proposed smoking cessation remedy in the DOJ case, anti-smoking groups may have helped give the case its death knell.
Why? Think of it this way: by claiming that the Bush Administration had destroyed the lawsuit by politically forcing DOJ to reduce its demand for smoking cessation funds from $130 billion to $10 billion, anti-smoking advocates are essentially stating that without the smoking cessation remedy for current smokers, the case is basically worthless.
After all, if anti-smoking groups are correct that the reduction in funding for smoking cessation programs from $130 billion to $10 billion has destroyed the case, then the most appropriate response of the Department of Justice is to attempt to settle the case. Why allow the case to go to the judge when on our own admission, it has been decimated? The best we can hope for, apparently, is some sort of settlement, so that at least we can obtain some public health gains.
The Bush Administration now has exactly what it needed: evidence that the public health community views the remedies available under the law as practically worthless. This gives it the political cover it needs to pursue a lawsuit settlement. It can now rationalize the settlement by stating that it was clear that the potential gains from pursuing the lawsuit to its completion were viewed by the public health community as being worthless. It could be argued, therefore, that according to the apparent perspective of public health groups, a settlement is the best chance of obtaining any public health gains.
If anti-smoking groups had thought a little bit before pouncing on the Administration for this relatively minor (as I'll explain below) matter, they might have realized that a more appropriate response was to emphasize how the smoking cessation money was only a small part of the case, and that the real point of the case was the principle involved: obtaining a guilty verdict against the companies and achieving remedies that would directly impact the ability of the companies to commit future RICO violations.
There are a number of remedies that are not only being requested by DOJ, but which actually are consistent with the civil remedies provisions of the RICO statute (see previous post for a thorough discussion). These include requiring substantial changes in cigarette advertising and marketing, including measures to prevent the marketing of cigarettes to youths and to prevent certain deceptive aspects of the marketing, such as the potential health value of "light" and "low-tar" cigarettes and requiring labeling changes, such as larger, stronger, and more graphic warning labels.
But the most important value of the case, which is apparently (judging by the reaction of anti-smoking groups) not critical to the most vocal anti-smoking groups, is the pursuit of justice itself, and the establishment of the principle that the tobacco companies actions over the past half a century were wrong and represented the worst of corporate behavior. Such a finding would, in and of itself, taint the image of the tobacco companies and make it far more difficult for them to convince the public that they are good corporate citizens with a commitment to social responsibility.
By their reaction to the events of last week, anti-smoking groups have painted themselves as concerned more about money, more about punishing the industry, more about extracting funds for their programs, then concerned about the principle of pursuing justice and establishing, once and for all, that the tobacco companies have committed one of the worst possible of corporate crimes against society.
In reality, the $120 billion difference between the proposed remedies is not only minor, but is actually meaningless. This is because the $130 billion smoking cessation plan never had a chance of being upheld. It was clearly inconsistent with the law. It was a backwards-looking remedy that sought to redress past industry violations of RICO, not to prevent and restrain future violations. It was clearly inconsistent with the D.C. Court of Appeals decision regarding what remedies are allowable under RICO. And it would have been promptly struck down the appellate court, even if Judge Kessler had completely ignored that court's ruling and imposed such a penalty on the companies.
If anti-smoking groups really wanted to protect and preserve the integrity of the DOJ case, they should have been more careful then to show their true colors - a preoccupation with monetary penalties - at a time when the actual integrity of the case was not yet at stake.
If you want to see political interference, then just you wait. The potential for political interference has not yet arrived in any real way; but it will arrive soon when the Administration has the opportunity to require DOJ to accept a settlement. That must be the absolute target of public health action. The number one goal needs to be to prevent the case from being settled.
But I'm afraid it may be too late. Because to exert enough political pressure to make it clear that a settlement is unacceptable, there needs to be a widespread public perception that the lawsuit is an extremely strong one, that the potential (and likely) legal remedies are imposing, and that the fight is worth fighting to its completion.
Through their outbursts of late last week, anti-smoking groups have sent the message (and it has been widely carried in the media) that the lawsuit is no longer a strong one and that the potential legal remedies are not at all imposing. The public perception is now likely to be that the fight is not worth fighting to its completion. (Even worse, the public perception may now be that anti-smoking groups are mainly concerned with extracting money from the industry).
So even putting aside the important issue of whether the definitive accusation of political interference in the absence of documented evidence was a responsible action, I believe that it was a strategic blunder. The timing of the outburst was not right, and its focus was exactly wrong. Its focus should have been on the principle of the case, and not on the amount of the monetary penalties. Its focus should have been on exerting the political pressure that would make it more difficult for the Bush Administration to force a settlement of the case.
Instead, the media coverage has now created a public perception that without the $120 billion, the case has been decimated. The Administration now has the political and public opinion cover it needs to make a logical argument for settling the case.