The Lung Cancer Alliance, an advocacy group that is "the only national non-profit organization dedicated solely to advocating for people living with lung cancer or at risk for the disease," last week filed an amicus brief in the DOJ tobacco lawsuit regarding potential remedies.
In the brief, the Lung Cancer Alliance asks the Court to impose as an additional remedy in the case a requirement that tobacco companies "contribute to a fund to support independent research on the etiology, diagnosis, treatment, and cure of lung cancer and the development of a national program of early lung cancer detection."
The basic rationale for this proposed remedy is that: "As a result of Defendants' successful effort to obfuscate the facts on smoking and addiction, lung cancer victims are the only cancer patients who are routinely blamed for their own disease. Largely because of lung cancer's unique stigma as the 'smoker's disease,' lung cancer research lags far behind research on other cancers in terms of public and private funding, and early diagnostic efforts are not nearly as well established."
The Lung Cancer Alliance opines that "the most important reason for the low level of public and private funding for lung cancer research and early diagnosis is the widespread perception, on the part of the general public, public officials, and even many health professionals, that lung cancer victims are less deserving of sympathy and public effort than are the victims of other diseases because the disease results from their choice to smoke cigarettes."
Later, the Alliance argues that "lung cancer is perceived as a 'smoker's disease' to such a point that many Americans are shocked when they hear of a lung cancer case in which the patient did not smoke."
The purpose of the proposed remedy is to "ensure that Defendants' misconduct will not continue to relegate lung cancer patients to the stigma and inadequate resources that have marked lung cancer precisely because of its status as the 'smoker's disease'. ... It helps to ensure that those who become addicted to Defendants' products in the future, and who develop lung cancer as a result, are not -- as generations of lung cancer victims have unfortunately been -- left with the multiple afflictions of a horrible disease and a public health system that treats their disease as worthy of less than full attention and effort. ... It will, in short, establish the principle that the Defendants have some responsibility for the entirely foreseeable (and foreseen) results of their actions in seeking out new generations of addicts."
The Rest of the Story
While I am sympathetic to the concerns expressed by the Lung Cancer Alliance and I certainly support what the group is trying to do for lung cancer victims, I'm afraid that this amicus brief really has almost no relevance to the case at hand.
The problem is that what the Lung Cancer Alliance is asking Judge Kessler for amounts to equitable relief designed to remedy, undo, mitigate, etc. the effects of RICO violations, not to prevent and restrain these violations. The requested remedy is clearly not allowable under the D.C. Court of Appeals ruling, as it is not consistent with the Court's interpretation of section 1964(a) of the RICO statute.
But even if the requested remedy were allowable, I think the legal argument presented in the brief is flawed. The basic premise of the argument is that the major reason why lung cancer research is underfunded is that lung cancer is viewed as the "smoker's disease." And it is the tobacco industry, according to the brief, that is responsible (through its campaign of lies and deception about the effects of smoking) for lung cancer being viewed as a "smoker's disease."
If you stop to think about it, you realize the absurdity of this argument. How could it possibly be the tobacco industry that is responsible for the widespread perception among the public that lung cancer is basically a disease of smokers? After all, if the allegations in the RICO case are correct, then the tobacco industry has been engaged in a decades-long conspiracy to hide from the American public the fact that smoking causes lung cancer and it has used its public relations machinery to try to undermine public health messages that smoking causes lung cancer.
It wasn't until 2002 that Philip Morris first acknowledged publicly (on its web site) that smoking causes lung cancer. Even as recently as 2000, the company failed to admit publicly that it believed smoking caused lung cancer.
If anything, the tobacco industry tried for decades to prevent lung cancer as being viewed as a "smoker's disease" by creating a controversy about whether smoking is in fact a cause of lung cancer. If anything, it is the tremendous success of public health educational efforts that has created the widespread perception that lung cancer is largely a disease of smokers. If the tobacco industry had its way, I don't believe that lung cancer would be viewed as a disease of smokers - the industry worked to try to blame everything under the sun for lung cancer other than smoking (e.g., genetic susceptibility, pollution, radiation, etc.).
But this brings up a question: what is wrong with lung cancer being viewed as a "smoker's disease?" Is is not true that lung cancer is largely a disease of smokers? Don't we in public health want the public to understand lung cancer as a disease that is predominantly caused by smoking?
It is here that I have to question the basic motives of the Lung Cancer Alliance. While I understand and agree wholeheartedly with the desire to remove the stigma associated with lung cancer and to end the blame-the-victim mentality that is pervasive and which tends to blame smokers for their disease rather than acknowledge that smoking is a powerful addiction, I simply do not understand what the problem is with the public perceiving, quite correctly, that lung cancer is predominantly a disease associated with cigarettes.
Yes - I think it would be a useful goal to try to change the perception that smokers are to blame if they get lung cancer and to instead recognize that smoking is a powerful addiction and that smokers are victims of an industry which is doing everything it can to market its products to smokers and to addict them to its products so that they will not quit smoking.
But doing so doesn't require challenging the truth - that lung cancer is predominantly a disease caused by cigarettes. Smoking is responsible for approximately 85% of lung cancer cases. Don't we actually want the public to understand this? Don't we want the public to be acutely aware that not smoking is the absolute best way to prevent lung cancer? After all, if lung cancer becomes viewed as anything other than a disease related to cigarette smoking, then it will undermine public health efforts to prevent smoking by ensuring that the public understands that lung cancer is predominantly a disease caused by cigarette use.
I don't think it is necessarily in the public's interest to advance one goal (achieving increased funding for lung cancer research) at the expense of another (making sure that the public understands that smoking is the predominant cause of lung cancer so that we can have the maximum effect on preventing smoking).
So I'm not sure that there is anything wrong, in fact, with lung cancer being viewed as a "smoker's disease," although I think that it would be more appropriate to have it viewed as a disease caused by cigarettes (implying that the victim is not necessarily to blame).
At any rate, the Lung Cancer Alliance's amicus brief will not play any role in the case. Or at least the group better hope it doesn't. Because while I can't see any chance of this proposed remedy even being considered by the Court, there is a danger that this brief, along with the all the other public health policy solutions being proposed by anti-smoking and public health groups, will help convince Judge Kessler that what is really going on here is a public health free-for-all.
Every group under the sun appears to be trying to use the DOJ lawsuit as a vehicle to obtain funding (albeit much-needed) for its own cause. The danger is that it is going to become more than obvious to the Court that the case is less about finding appropriate remedies under the law than it is about trying to use the presence of the lawsuit to obtain money for anti-smoking groups and their programs.
At best, the arguments in this amicus brief will be summarily dismissed by Judge Kessler. But at worst, they will contribute towards the perception that the proposed remedies are largely a public health wish list presented by any anti-smoking group that sees the case as a chance to obtain much-needed funding for itself and its programs.