Despite the recent evidence that the Department of Justice altered its requested smoking cessation remedy in order to more closely comply with the D.C. Court of Appeals decision that disallowed any "backwards-looking" RICO remedies, the Campaign for Tobacco-Free Kids, as recently as August 23, continues to claim that the decision was a result of political interference and that it represents a travesty of justice.
In an action alert of that date, the Tobacco-Free Kids Action Fund told the group's constituents that DOJ was letting Big Tobacco off the hook and that the Campaign for Tobacco-Free Kids would step in and "fight back."
The action alert, which specifically requests contributions to offset the costs of the legal filing in the case by the intervenors, states: "News reports indicated the government changed its [smoking cessation remedy] recommendation as a result of political interference in the case. It appears the tobacco industry may be getting a sweetheart deal for the millions in political contributions it has made. This would be an absolute travesty of justice, and this is why we have stepped in to represent the interests of the American people in this landmark case. ... Make a donation today to fund our work to assemble the strongest reforms for our brief."
The Rest of the Story
Well apparently the Tobacco-Free Action Fund did not receive enough donations, because if its brief represents the strongest reforms it could put together, then that's not very good.
As long as this group was going to argue for remedies that are clearly not allowable under the appellate court's decision, then why did it so blatantly ignore the needs of the potential lung cancer victims who will suffer because of the tobacco industry's misconduct? Why is there no money in the intervenors' proposal to provide early diagnosis and treatment support that could save millions of lives?
And why were potential heart disease victims betrayed? Wouldn't forcing the tobacco companies to pay for the costs of diagnosis and treatment of heart disease among smokers whose smoking was a result of RICO violations serve as an effective deterrent to future RICO violations? If the industry knew it was going to have to pay for the screening, diagnosis, and treatment of all diseases caused by its products among all smokers, that would certainly serve as a powerful incentive to deter future RICO violations, would it not?
And why only $600 million for a public education and counter-marketing program? A $3 billion annual program would clearly be a stronger deterrent to future RICO violations, and it would also be far more effective in inoculating the public against the potential effects of fraudulent and deceptive cigarette marketing than a mere $600 million a year program would be.
The failure of the Tobacco-Free Action Fund to request the strongest possible remedies in this case is a travesty of justice. What a sweetheart deal Tobacco-Free Kids has given to the tobacco industry. And the industry didn't even have to give them any political contributions to get that gift.
Its hard to understand why Tobacco-Free Kids let the tobacco industry, which kills "1,200 Americans every day" and addicts "2,000 kids every day," off the hook.
Clearly, there is a need for a stronger public health or anti-smoking group to intervene in the case and really represent the interests of the American people in this landmark case. I do think it's time that we "finally hold the tobacco industry accountable and protect our kids and health instead of tobacco profits."
If it's not readily apparent, I think the argument that DOJ let Big Tobacco off the hook by not requesting the most expensive remedies in the case is an absurd one. What good are expensive remedies if they are not supported by the law governing the case and have no chance of being implemented?
So I reject the argument that DOJ political appointees interfered in the case in order to weaken it and to protect Big Tobacco. I think they were trying to save the Department from the complete embarrassment of having its largest remedies struck down immediately and of appearing to be unresponsive to Judge Kessler's request to comply with the appellate court ruling.
I therefore also reject the idea that the tobacco industry is getting a sweetheart deal from DOJ or that this represents a travesty of justice. If anything, the Campaign for Tobacco-Free Kids is asking for a travesty of justice, by requesting that Judge Kessler essentially ignore the law and the appeals court ruling and order remedies that are not allowable.
And finally, I reject the idea that the Campaign for Tobacco-Free Kids has indeed stepped in and represented the interests of the American people. It is certainly not in the interests of the American people to ask for larger and broader remedies that are even more remotely tied to RICO violations, and that are going to be thrown out.
The Campaign for Tobacco-Free Kids has, in my opinion, hurt and not helped the case, and thus, it has not served the best interests of the American people.
What the American people needed was for a public health group to come in and throw its own greed and/or obsession with money aside, and use a careful analysis and prudent understanding of the law to fashion narrow remedies that would have the greatest chance of being upheld, which would have most directly restrained the specific RICO violations that are at issue, and which would have been most appropriate under the law governing this lawsuit.
Frankly, anything short of that may represent a travesty of justice, and for that, I think the American people have the Campaign for Tobacco-Free Kids (and its associated intervenors - Americans for Nonsmokers' Rights, the American Cancer Society, American Heart Association, and American Lung Association) to thank.