The brief asks the Court to:
- require Defendants to disclose all documents produced in foreign litigation, not just documents from the U.S., arguing that "there is no guarantee that litigation in the U.S. will continue to produce documents useful for preventing future RICO violations or other public health or scholarly purposes";
- require Defendants to disclose, in a timely manner, their current marketing plans to a counter-marketing entity (such as the American Legacy Foundation), arguing that: "If the Counter-Marketing Entity could gain real-time access to this information directly from the Defendants, counter-marketing would be more effective";
- require Defendants to disclose any funding of outside organizations, arguing that "disclosure of their funding and support of outside groups will enable the IO [an independent, court-appointed tobacco industry monitor] and public health groups to detect any efforts by Defendants to undermine future tobacco control efforts by using third parties to advance their interests surreptitiously in order to do something that they themselves would be prohibited from doing";
- add to the list of health descriptors that tobacco companies may not use the following: "low tar, ultra, smooth, slim, super slim, free, additive-free, no additives, medium, low nicotine, reduced nicotine, and ultima" and make it clear that the companies cannot use numbers, letters, or color variations or shading to indicate that one product may be less dangerous than another;
- prohibit all brand name sponsorships that result in youth exposure, rather than just motor sports sponsorships;
- prohibit the Defendants from collecting data from youth regarding smoking and health; and
- direct the independent industry monitor to consult with experts to determine whether graphic imagery should accompany corrective statements required of the tobacco companies.
Compared to the amicus briefs submitted by the Citizens' Commission to Protect the Truth, the Campaign for Tobacco-Free Kids, American Cancer Society, American Lung Association, American Heart Association, and Americans for Nonsmokers' Rights, the Lung Cancer Alliance, and the attorneys general of 22 states, this brief is a breath of fresh air.
It is truly the first amicus brief I have reviewed that has any direct relevance to the case.
The brief actually considers what remedies might be effective in directly restraining future RICO violations by tobacco companies. For example, it directly addresses the issue of what requirements the Court should impose on the companies to prevent them from making misleading health claims in the future about the potential health benefits of using various tobacco products. The Consortium's suggestion that additional health descriptors be added to the list seems quite reasonable, since those terms could be expected to be potentially misleading to consumers.
In addition, the Consortium's suggestion that cigarette companies not be allowed to use numbers, color variations, or different shading to indicate various levels of implied safety also seems reasonable. Even if the terms "light" and "ultra-light" are prohibited, the companies could still get around this by using different colors to indicate the same differentiation of products. In fact, most consumers probably already can identify the differences between regular, light, and ultra-light variations of a brand based on color patterns on the cigarette packs.
If the Court does decide to restrict tobacco sponsorships to which youths might be exposed, then it certainly doesn't make any sense to exempt non-motor-sports sponsorships, so this enhancement of DOJ's proposed remedy also seems reasonable.
It also seems reasonable to suggest that Defendants be prohibited from collecting data from youths to be used for marketing purposes. While the brief's request for an all-out proscription of any data collection from youths does seem a bit broad, I cannot immediately think of any reason why the companies would need to collect such data if youths are not part of their target audience.
The requirement that tobacco companies disclose their marketing plans seems reasonable, since disclosure of this information could be viewed as a critical component of enforcing a prohibition on tobacco companies lying about marketing to youths. However, I do not agree with the reasoning given for such a remedy. The brief suggests that this remedy is necessary in order to allow the counter-marketing entity (such as the American Legacy Foundation) to effectively counter tobacco marketing. However, this does not seem to address the need to prevent any particular RICO violation. A counter-marketing campaign seems like a remedy designed to redress the effects of RICO violations, not to prevent future violations, so I do not follow the reasoning being provided here. Nevertheless, the ultimate remedy requested - disclosure of marketing plans - seems to be a potentially effective method to enforce a prohibition on the tobacco companies lying about marketing to youths in the future.
The two suggested remedies which I think are not adequately justified in the brief are the request for disclosure of tobacco funding of all organizations and the added requirements on corrective statements.
Unless I'm missing something, the funding of organizations to "undermine tobacco control efforts" (e.g., by opposing cigarette taxes, smoking restrictions, etc.) does not constitute a RICO violation. Certainly, establishing front groups or paying scientists to distort the truth as part of a scheme to mislead the public about the health effects of smoking is an alleged RICO violation. But a requirement to disclose all industry funding of organizations seems far too broad to address this more narrow issue. For example, the tobacco companies fund a large number of philanthropic causes. It's not clear to me why requiring them to disclose that they gave money to support Hurricane Katrina relief, for example, is necessary to prevent and restrain future RICO violations.
Finally, it's not clear to me that corrective statements will effectively prevent and restrain future RICO violations, since they seem more directly intended to redress the effects of such violations. Thus, it's not clear to me that adding more requirements on such corrective statements is a justified remedy. The danger is that if companies are required to make such corrective statements, then it might actually create an incentive for them to further their RICO violations in order to counteract the effects of their own statements. In addition, I think there are issues regarding potential restrictions on free speech (First Amendment issues) as well as issues regarding usurpation of federal executive and legislative branch authority to regulate the required health warnings on cigarettes that this remedy raises.
I will not add a comment on the foreign document disclosure requirement, since I'm simply not familiar enough with any foreign litigation to comment on this issue. However, I will mention that I don't think any "public health or scholarly" uses of the documents play any role in the Court's consideration of the merits of this remedy. The only consideration is whether foreign document disclosure is necessary to, and effective at, preventing and restraining future RICO violations.
All in all, the Tobacco Control Legal Consortium's amicus brief is truly a breath of fresh air because although I do not find all of its arguments for enhanced remedies to be solid, it does directly address the issue of helping the Court to fashion effective remedies to directly prevent and restrain future tobacco company RICO violations.
At very least, it demonstrates what a responsible amicus brief submitted in the public's interest might look like, and it illustrates just how inappropriate are the interventions on the part of the other health organizations in the case.
Of course, the brief does open by supporting the intervenors' request for a $130 billion smoking cessation remedy and a $600 million public education remedy which I believe have no legal merit. However, I'm so used to seeing greed-ridden briefs that ask the Court to ignore or misapply the law in order to fund public health causes that I'm not going to ask for perfection here. The Consortium is to be applauded for making a sincere attempt to help the Court fashion appropriate remedies under the law.