Thursday, June 30, 2005

IN MY VIEW: Fashioning an Effective and Appropriate Remedy to Restrain RICO Violations

If public health groups really want to help the D.C. District Court fashion effect and appropriate remedies in the tobacco case, then I think their focus should be not on monetary remedies, which have no chance of being upheld, but rather on the non-monetary remedies, which is where I think the action is.

I think that several of the non-monetary remedies requested by DOJ, such as document disclosure (including marketing plans), prohibition of false or misleading statements about company products or health effects, and a ban on use of misleading health descriptors seem appropriate. But the area where I think help is needed is in fashioning a remedy to help prevent future targeting of youth in cigarette advertising and marketing.

The present remedy that DOJ has requested is problematic, because it seems overly broad to withstand a First Amendment challenge (the present request is to disallow any marketing that appeals to youths).

So the challenge as I see it is to fashion a remedy that will prevent the companies from targeting youths in their advertising but will be narrow enough and directly enough tied to future RICO violations so as to be both statutorily valid and not in conflict with the First Amendment. (Remember that targeting of youths in advertising, along with misrepresenting the health effects and addictiveness of cigarettes are the two major bases for the government's claim that tobacco companies have violated RICO.)

If public health groups want to submit a brief in the case, that is where I think they could be most helpful (not in again reiterating their demand for an extra $120 billion).

I have already argued that to some extent, using RICO as a mechanism to regulate tobacco industry behavior is kind of like trying to fit a square peg into a round hole. So I don't profess to have any obvious answers to the dilemma that I pose.

However, perhaps it may be helpful to suggest one possible remedy to start getting health groups thinking in terms of how to prevent targeting of youths in cigarette company marketing in a way that is consistent both with the appellate court's ruling and with the First Amendment. After all, the best that these groups can do to represent the interests of the public is to recommend to the judge a remedy that may actually be imposed and upheld. It doesn't advance the public's interest to propose billions of dollars that the government will never see.

So here's my idea: the most direct way that one could fashion a remedy to prevent targeting is to first define what targeting means. Does it mean creating ads that appeal to youths? That's part of it. But the real issue is the placement of those ads. Because ultimately, it is the pattern of ad placement that is going to determine whether youth targeting, and thus a continuing RICO violation, is taking place.

So how could one determine whether companies are targeting youths through their advertising placement? This is an area in which I have done a considerable amount of research. My thinking at this time is that it is really the relative exposure of youths compared to adults to brand-specific cigarette advertising that is perhaps the best, and most direct measure of whether targeting is taking place.

In other words, if Marlboro ads expose 90% of adults and 95% of kids, then it seems quite clear that the brand is targeting youths. There are certainly media vehicles available that would allow Marlboro to advertise in a way that would expose a large percentage of adults but without reaching almost every youth in the nation. If Marlboro were to change its advertising placements such that it were reaching 80% of adults but only 35% of kids, then I think it might be clear that it was no longer targeting youths.

The problem, of course, is defining the factor by which reach or exposure among youths must be lower than reach or exposure among adults in order to ensure that targeting is no longer taking place. Given the actual experience of Marlboro in its magazine ad placements over the past 5 years, I think a factor of 2 might not be unreasonable.

It would be important to fashion the remedy to apply to each cigarette brand, because on a company-wide basis, certain brands could still target youths but overall company ad exposure could meet the prescribed exposure limits.

I would note that this type of approach was very attractive to the judge in California who ruled in favor of the state in its suit against R.J. Reynolds for violating the Master Settlement Agreement's targeting provision.

I should also note that a broad statement that simply prohibits targeting of youths in cigarette company marketing would be problematic, because as we have seen with the MSA, it is quite vague and difficult to interpret, measure, and therefore enforce. Whatever remedies are issued must be specific enough so as to be easily measurable, interpretable, and enforceable.

I think that a remedy based on actual brand-specific marketing plans would be an appropriate one because it is directly tied to company violations of the youth targeting aspect of the lawsuit, it is readily measurable, interpretable, and enforceable, it is clearly fashioned with a specific and narrow intent to prevent and restrain future RICO violations in this area, and it is consistent with the First Amendment because it represents only the minimal amount of restriction on tobacco company marketing behavior that is reasonably necessary to prevent the violations in the future.

Public Health Groups Seek to Intervene in DOJ Case

Six public health groups -- the American Cancer Society, American Lung Association, American Heart Association, Americans for Nonsmokers' Rights, National African American Prevention Network, and Tobacco-Free Kids Action Fund -- have filed a motion to intervene in the DOJ case by being recognized for the purpose of submitting briefs solely to address the nature of remedies that "are appropriate to this case."

According to the motion, "these groups seek to intervene at this stage of the litigation because the Government recently announced that it has drastically reduced the relief it sought to protect the public health and welfare." The motion makes it clear that the basis for the groups' request to intervene is the Government's decision to reduce the requested smoking cessation remedy from $130 billion to $10 billion.

According to a Washington Post article, John R. Seffrin, chief executive officer of the American Cancer Society, explained that the smaller cessation plan "doesn't even begin to offer (American smokers) the assistance they need to drop the deadly habit and live a life free of tobacco."

William Corr, executive director of the Campaign for Tobacco Free Kids was quoted as explaining that: "The remedies order makes clear the DOJ does not represent the best interest of the public and the public health community. All of our organizations strongly support the recommendations that Dr. Fiore made. If we're permitted to write a legal brief, we'd certainly stress the need for a remedy like Dr. Fiore's."

According to a Dow Jones Newswire article, William Ohlemeyer, associate general counsel of Altria, stated about the motion: "At best, it reflects a fundamental misunderstanding of the law and the facts; at worst, it's a disingenuous attempt to confuse and mislead the public about the issues that must be decided in this case."

The Rest of the Story

While I see nothing wrong with the attempt of these groups to intervene in the case in order to help the court fashion appropriate remedies should it find in favor of the government, it is quite apparent that the groups are presently not focusing on helping the court fashion such appropriate remedies. Thus, while the groups may be allowed to submit briefs, it does not appear, at least now, that these briefs will be of any use or benefit to the interests of the public in this case. Nor does it appear that the focus of these briefs will likely have much of any legal relevance to the judge's deliberations.

The problem is that the groups' expressed focus in submitting a remedies brief is legally irrelevant. While the ACS president and Tobacco Free Kids Executive Director have expressed their concerns for how important it is to fund a broad enough smoking cessation program to provide support cessation assistance for all smokers who may desire to quit, that is a completely irrelevant issue in the case.

These groups still seem to have a basic misunderstanding of the legal issues in the case. The case is not about what remedies would be most effective to assist the nation's smokers, to educate youths about the dangers of smoking, or even to improve the public's health. The case is strictly and narrowly about what remedies would be most effective in preventing and restraining tobacco companies from future RICO violations under the law as specified in 18 U.S.C. section 1964(a) and as interpreted by the D.C. Court of Appeals.

The fact that a government expert testified that a $130 billion smoking cessation program would be necessary to adequately provide cessation services for all smokers who may want to quit does not mean that such a program is an appropriate remedy under the law. In fact, I think it is quite clear that it is not an appropriate remedy under the law. So the fact that the government backed away from that remedy does not, in and of itself, seem to me to be a sufficient basis for requesting status to intervene in the case. But more important, submitting a brief that requests that the $130 billion remedy be reinstated seems to be rather irrelevant to the case.

While I disagree with William Ohlemeyer's suggestion that the action of these six groups is "a disingenuous attempt to confuse and mislead the public about the issues that must be decided in this case," I have to agree with his basic impression that "it reflects a fundamental misunderstanding of the law."

Wednesday, June 29, 2005

Department of Justice Files Motion Outlining Proposed Remedies

The Department of Justice has just filed its motion with the D.C. District Court outlining its proposed remedies should the tobacco companies be found liable for RICO violations. The major proposed remedies are:

Monetary Remedies
  • $10 billion over 5 years for a national smoking cessation program available to all smokers, including a national telephone quitline, access to cessation counseling and medication, and a national media campaign;
  • $2 billion over 5 years for a national anti-smoking media campaign to be run by the American Legacy Foundation; and
  • Penalties to each company if the percentage of youths smoking its cigarette brands does not fall by 6% each year, for a total decrease of 42% by 2013 (the penalty is $3,000 per youth times the number of youth by which the target is missed);
Non-Monetary Remedies
  • Corrective communications on tobacco company web sites, in newspapers, and on cigarette packaging regarding the health effects of smoking, addictive nature of smoking, lack of health benefit of low-tar and low-nicotine cigarettes, and impact of cigarette marketing on youth smoking behavior;
  • Continued disclosure of tobacco industry documents, including marketing documents;
  • Court appointment of monitors to investigate and report on the activities of tobacco companies that may relate to future RICO violations;
  • A prohibition on cigarette companies making any false or misleading statements regarding their products;
  • A ban on companies using descriptors like "mild," "light," "ultra-light," etc. which may convey an implied health benefit message; and
  • Prohibition on companies conducting any marketing that appeals to youths, in the judgment of the court-appointed monitors.
The Rest of the Story

The remedies requested are largely inconsistent with the D.C. Appeals Court ruling and for the most part, have little chance of being either imposed by Judge Kessler or upheld by the Appeals Court.

The monetary remedies, in their totality, I find inconsistent with the RICO statute and I think there is essentially no chance of their being upheld. A national smoking cessation program for all smokers is clearly a backwards-looking remedy. It is primarily intended to redress past industry wrongs, not to prevent future RICO violations.

Similarly, a national anti-smoking media campaign is a backwards-looking remedy. It is even less relevant to RICO violations. In fact, I don't see how it has anything to do with either preventing or restraining violations. It could be great to advance public health objectives and reduce smoking, but I don't see it as an appropriate remedy under RICO and in light of the appellate court ruling.

The penalties for failure to meet youth smoking targets are the only monetary remedy that is forward-looking. However, I don't see any chance for this remedy to be imposed or upheld because it is far too indirectly related to future RICO violations. Youth smoking prevalence is not a direct measure of cigarette company RICO violations. There are a large number of factors that affect youth smoking, of which industry targeting of youth in its marketing is one. But I don't see how one can argue that failure to meet targets for reduction in youth smoking prevalence directly reflects the continued violation of RICO provisions. If all RICO violations were to end today, would youth smoking decline by 42% in the next 7 years? I don't know, but I am certainly not aware of any strong evidence to suggest that we know that would occur.

In fact, it is theoretically possible for the tobacco companies to reach the youth smoking targets while continuing to commit RICO violations. If they continued to market to youths, but simply raised the price of cigarettes enough, then youth smoking probably would drop by the prescribed amounts, even though RICO violations were continuing. Obviously, the cigarette companies would not have an interest in doing this, but the fact that it could occur demonstrates the disconnect between youth smoking prevalence and RICO violations.

Another reason why the evidence does not support these penalties as an effective and appropriate remedy is that one cannot attribute changes in youth smoking that have occurred even in the past decade to changes in the degree of industry RICO violations. Does the large decline in youth smoking in the late 1990s that recently plateaued indicate that the industry stopped or reduced its youth targeting in the late 1990s but recently re-instituted or increased that targeting? Clearly, youth smoking prevalence is not any kind of direct measure of the extent of industry RICO violations.

In summary, I do not find any of the monetary remedies to have any reasonable chance of being imposed and upheld by the district and appeals courts.

On the other hand, the non-monetary remedies do seem to be forward-looking and are certainly more directly tied to preventing the defendants' continued violation of RICO. However, there are a number of problems:

First, I doubt that the court will find favor with the idea of prescribing a specific set of statements for the cigarette companies to make to correct past misbehavior. That sounds much more like a legislative approach than a legal one. I doubt Judge Kessler is going to be comfortable with playing the role of chief tobacco control science and policy expert in the country and fashioning, much less prescribing these specific statements. I would think she would defer to someone like the Surgeon General, and unfortunately, he and she has already failed miserably in that regard. But it is really up to Congress to correct that, not the courts. Or so I think Judge Kessler will opine. So I believe that the corrective statements will probably go by the wayside.

Second, Judge Kessler has already expressed reservations about the idea of the court playing such an intensive role as appointing and supervising the investigative work of industry monitors. This also seems to be far beyond the role of the court. I think Kessler would rather issue a decision and leave this case behind her, rather than make her Court a permanent (or even temporary) administrative arm for tobacco industry corporate surveillance. For this reason, I think the industry monitors will also go by the wayside.

Third, the prohibition against marketing that appeals to youth is problematic for two reasons. First, the simple fact that advertising may appeal to youths does not imply that it will entice them to smoke. They first have to be exposed. And the basic government complaint is not simply that the industry marketing practices were appealing to youths but that the industry specifically targeted youths in their marketing.

Second, how would one measure whether advertising or marketing "appeals" to youths. According to the proposed remedy, the court-appointed monitors would make this judgment, but if that remedy is rejected, then who would make the decision about what is appealing and what is not? And is the Court likely to find this remedy narrow enough to make it appropriate under the law? Can one outlaw all advertising that is appealing to youths, even if some of it is clearly intended to reach and affect adults? This remedy has a chance, but it is not without some significant problems.

The three remedies that I think have the best shot are continued document disclosure, prohibition of false or misleading statements, and elimination of health descriptors. Unfortunately, these are the remedies that are probably least likely to have any substantial effect on protecting the public's health.

What does this all mean? I think it means that as currently specified, the government's proposed remedies are either: (1) not allowable under the law; or (2) not likely to have any substantial impact on the public's health.

Does this mean that the case is not worthwhile pursuing? For me, no. I think the pursuit of justice itself is an important end, and a simple finding of liability on the part of the cigarette companies would have profound implications for the way in which the companies could portray themselves in the public's eye. That could, in and of itself, have a larger effect on the public's health than any of the proposed remedies.

But for anti-smoking organizations, I doubt that the pursuit of justice itself is enough. I think money is what they are largely after, and there's simply none to come by.

The rest of the story suggests that what is really going on here is that the government is trying to fit a square peg into a round hole. They are trying to achieve a lot of monetary gains and a lot of public health gains, but they are trying to achieve those gains using a law that simply doesn't allow for those type of remedies. Could it be possible to develop more effective remedies that would be consistent with the law? I don't know. But the Proposed Final Judgment and Order is certainly not that round peg.

Monday, June 27, 2005

Restaurants Begin to Exploit Loopholes in Georgia Smokefree Law

As the implementation date of July 1 for Georgia's smoke-free workplace law approaches, restaurants are scrambling to make two important business decisions: first, whether to be an adult-only or a family-oriented establishment come July 1; and second, for those which decide to be family-oriented, whether to provide a separately ventilated smoking room for smoking patrons.

Georgia's Smokefree Air Act of 2005 eliminates smoking in restaurants, but exempts adult-only establishments as well as separately ventilated smoking rooms in all establishments. Thus, restaurants must decide by July 1 whether or not they wish to declare themselves to be adult-only establishments in order to continue to allow smoking. Alternatively, restaurants that wish to continue both to allow children and to allow smoking can create separately ventilated smoking rooms for their smoking patrons.

Apparently, there are at least a number of restaurants that have decided to become adult-only establishments in order to continue to allow smoking or to take advantage of the exemption for separately ventilated smoking rooms.

The decision faced by Georgia restaurants is summarized by the title of a article on the law: "Georgia Law Offers Restaurants a Choice: Ban Cigarettes or Kids."

The article quotes the manager of one Atlanta restaurant that has decided to become adult-only: "This is one of those really tough business decisions that you just have to make.'' "He estimates the restaurant would lose 20 percent of its customers if it banned smoking instead of children."

The Rest of the Story

The choice faced by restaurant owners of whether to ban smoking or to ban kids highlights the complete senselessness of this law from a public health perspective. Essentially, what the law does is to allow decisions about whether restaurant workers will be exposed to secondhand smoke to be made by their employers. This is an absurd public health policy. If secondhand smoke is truly as hazardous as Georgia anti-smoking organizations allege, then how can they justify supporting a law that allows restaurant owners to make the decision about whether to protect employees from this hazard, rather than dictating that employees must be protected?

Similarly, how can public health advocates defend having supported a law that now puts the health of restaurant workers in their employers' hands by forcing those employers to determine whether those workers must serve patrons in very smoky, designated smoking rooms? These rooms have been shown to have extremely high concentrations of secondhand smoke, and there is little question that if secondhand smoke is as hazardous as advocates allege, it is going to be devastating to the health of restaurant workers who serve customers in such areas.

The first tenet of medical practice, and I believe public health practice as well is "to do no harm." The Georgia Smokefree Air Act of 2005 is going to do a lot of harm, not only to the health of restaurant workers who end up being forced to serve customers in separately ventilated smoking rooms, but also to the tobacco control movement itself, whose lack of reason in promoting these inconsistent policies is starting to be widely exposed.

There is a very compelling argument that can be made for an incremental policy making process, which I think is quite appropriate. It is very true that if we can protect some workers, and then later extend the protection to all workers, that is a reasonable and effective approach.

My argument, however, is different. My argument is that the Georgia law, by "requiring" many restaurant workers to work in highly contaminated smoking rooms, is actually going to hurt many workers and result in lives lost, rather than lives saved. Or at best, it will balance off lives saved with lives lost.

In other words, the policy is actually going to make the situation much worse for many. The average level of nicotine in a restaurant that allows smoking is about 8 micrograms per cubic meter, but in a separately ventilated smoking room, it is about 70. That means that workers in these restaurants will be subjected to levels of secondhand smoke that are 9-times higher. If one argues that a reduction from 8 to 0 is going to save lives, then clearly, an increase from 8 to 70 is going to increase mortality for some workers.

I'm simply suggesting that a policy which significantly increases risks for workers makes little sense. I'm not suggesting that a policy which takes steps in the right direction, but not all the way, is inappropriate. Actually, that's the only way to eventually protect all workers.

The rest of the story suggests that the Georgia law will substantially set back public health efforts not only in Georgia, but elsewhere in the country as well. It clouds the real issue that should be the focus of public health efforts - the need to protect workers from secondhand smoke exposure - with two issues that are not relevant public health concerns: (1) a perceived need to protect youth patrons; and (2) a perceived acceptability of forcing some restaurant workers to breathe in extremely high levels of carcinogens in order to protect many customers.

I can find no public health justification for either of these two approaches. By diverting the issue away from what it should be, I think this approach actually sets back, rather than propels forward, the movement to protect all workers from the alleged hazards of secondhand smoke.

Friday, June 24, 2005

SmokeFree Pennsylvania Becomes First Tobacco Control Group to Urge DOJ to Strengthen Tobacco Lawsuit

In a June 23 action alert and letter sent to U.S. Attorney General Alberto Gonzales, SmokeFree Pennsylvania urges the Department of Justice to appeal the D.C. Court of Appeals decision limiting available remedies in the case to the Supreme Court, to not settle the case before the appeal is decided, and in the interim, to devise and request detailed cigarette marketing and labeling restrictions as effective and appropriate remedies under the D.C. Court of Appeals ruling.

The letter specifically acknowledges that reinstating the $130 billion request for a national smoking cessation program would be inappropriate because it is not consistent with the law now governing the case. Given that fact, the letter stresses the importance of developing and requesting remedies in the area that is most directly tied to preventing future RICO violations: marketing and labeling restrictions.

The letter states: "It also would be irresponsible for the DOJ to comply with requests by other health groups to reinstate a previously proposed $130 billion smoking cessation program, since it almost certainly would be struck down by Judge Kessler (or on appeal) because it is inconsistent with the DCCA ruling that (currently) limits DOJ remedies to those that prevent future misconduct by defendants. Instead, in addition to its other proposed remedies, the DOJ should stipulate (in its "detailed proposed Remedies order" due June 27) truly effective cigarette marketing and labeling remedies that can prevent future misconduct by defendants."

The Rest of the Story

SmokeFree Pennsylvania has now become the first anti-smoking group that I am aware of to actually urge DOJ to take steps that will strengthen its lawsuit against the tobacco companies.

Actions by other anti-smoking groups, which have focused on restoring the $130 billion remedy and insisting upon the other money-related remedies (including a national anti-smoking campaign and industry penalties based on youth smoking rates), are largely irrelevant to the strength of the DOJ's legal case, because these remedies are inconsistent with the law governing the case and have no chance of being ordered by Judge Kessler and upheld by the D.C. Court of Appeals.

In contrast, the remedy sought by SmokeFree Pennsylvania is consistent with the RICO statute and the appellate court decision because marketing and labeling restrictions are intended to directly prevent and restrain future RICO violations (since most of the alleged violations relate to marketing and labeling actions of the cigarette companies). These would not be monetary remedies, but could directly impact the ability of the companies to engage in future RICO violations.

In fact, SmokeFree Pennsylvania specifically rejected the idea that DOJ should reinstate its request for the $130 billion smoking cessation program, calling such a request "irresponsible" because of its conflict with the law. In asking DOJ to ignore the request being made by most other anti-smoking groups, SmokeFree Pennsylvania has demonstrated an actual understanding and appreciation of the legal issues in the case and a respect for the importance of fashioning remedies that are consistent with the law, rather than remedies that will bring windfalls of money into the anti-smoking movement.

Americans for Nonsmokers' Rights Defends its Unqualified Claim that Associate Attorney General Robert McCallum is a Former Tobacco Industry Lawyer

Apparently in response to The Rest of the Story's questioning of its action alert telling the public that Associate Attorney General Robert McCallum is a "former tobacco industry lawyer," Americans for Nonsmokers' Rights (ANR) has posted a web page defending its action alert and attempting to clarify its original claim.

In defense of its communication to the public that McCallum is a former tobacco industry lawyer, ANR explains that: "The mechanics of a law firm operate so that partners act as 'shareholders', receiving income based on ALL billable hours that a firm collects. Unless Mr. McCallum can prove that he received no income from any hours billed to R.J. Reynolds and collected by his firm, then in fact, Mr. McCallum IS a tobacco industry lawyer."

The Rest of the Story

Setting aside for now ANR's interpretation of the term "tobacco industry lawyer," ANR's defense of its action alert demonstrates the precise problem that I am trying to point out here: that ANR does not seem to be concerned about misleading the public in order to elicit their support in issuing a personal attack on an individual and a political attack on the administration.

Regardless of how ANR interprets the term "tobacco industry lawyer," what matters is how the public interprets the term. In my view, in my judgment of how the public would likely interpret the phrase, and in light of my own questioning of members of the public to determine how they actually do interpret the phrase, it is clear to me that people have and will interpret the phrase to mean that McCallum had formerly represented tobacco companies directly, as an individual, in tobacco legal matters.

Thus, even if ANR may have its own interpretation of the term, the basic point is that the term is misleading to the public. And I believe that since ANR is now apparently aware of the concern about the potential for misinterpretation of the term, its failure to clarify it must be construed as an intentional failure to clarify. In other words, it is satisfied that the public may misinterpret its action alert in a substantial way.

The public's likely misinterpretation of this important information is critical, because it is going to have substantial implications for how the public views McCallum's character. If the public believes he was a partner in a law firm that did tobacco industry work but that he has never represented a tobacco client in his life, then I believe the public will perceive much less of an egregious violation of ethical standards by this individual. However, if the public believes he represented a tobacco company in the past, then I believe the public will perceive this individual as having egregiously violated ethical standards by participating in the DOJ tobacco lawsuit and his character and reputation will be completely shot in the public's eye.

If ANR is going to contribute to diminishing the character and reputation of an individual in the public's eye, then I think it should at least be based on an accurate perception of the truth by the public.

Now, to the explanation itself. If ANR truly views any attorney who is a partner in a firm as being a lawyer for every company that has any business dealings with that firm, then I guess that is their prerogative. But I find it quite a stretch.

Are they really suggesting that if I am a partner in a firm that managed the closing for a new building that Smith & Wesson was purchasing, but I had no direct involvement in the case, that I am a gun industry lawyer? Someone has to handle those legal matters. Does it make every partner in that law firm a gun lawyer?

And are they really suggesting that if I am a partner in a law firm that managed the patent protection for a new brand of wine, but I had no direct involvement in the case, that I am an alcohol industry lawyer?

I find the suggestion to be an overly broad interpretation of the term. Because the clear implication of the term gun lawyer or alcohol industry lawyer or even tobacco industry lawyer is that the lawyer represented that company.

To make matters worse, in clarifying its statement on its web site, ANR apparently failed to link the explanation to the action alert. I can find no link from the action alert page to the page that contains the clarification. So there is basically no chance that the public will see the clarification.

So it takes ANR a full page to clarify its charge that McCallum is a former tobacco industry lawyer but they don't take the simple action of either:
  • clarifying the statement on the action alert page so that the public is not misled; or
  • linking to the clarifying statement so that there is at least an opportunity for the public to obtain a clear explanation of the otherwise likely misleading claim.
But the clincher is that in describing a number of DOJ political appointees that ANR claims have tobacco industry ties, it describes McCallum as simply a former tobacco industry lawyer, while it describes Attorney General Chief of Staff Theodore Ullyot not as a former tobacco industry lawyer, but as "a former partner in a law firm representing Brown & Williamson in the DOJ suit." Why the distinction between McCallum and Ullyot? Why does having been a partner in a law firm that represented the industry warrant McCallum a description as a former tobacco industry lawyer, while Ullyot gets a fuller and more accurate (and less likely misleading) description as having been a partner in a law firm that represented the industry?

There is no reason, whatsoever, why ANR cannot be clear about the matter, and explain in the action alert, as they did on the clarifying web page, that Mc Callum was a "partner at a law firm that represented R.J. Reynolds." What possible harm could be done by providing an explanation that is exquisitely clear and does not risk misleading people into believing something that is not true?

The rest of the story suggests that ANR is more concerned about its own political objectives, including attacking the tobacco industry and anyone that it thinks has any affiliation with it, than with being careful to provide information to the public that is accurate and not misleading. Attacking individuals with tobacco industry affiliations may feel good, but as a tobacco control practitioner, it does not feel good to me to have an organization upon which I was previously a Board Member mislead the public in such a critical way - all in order to issue a personal attack on an individual who never represented the tobacco industry in his life.

Adweek Article Suggests that Legacy-Funded Commission Exists Primarily to Seek Funding for Legacy

An Adweek article published online yesterday describes the American Legacy Foundation's efforts to obtain a huge chunk of any money that Judge Gladys Kessler may award the government in the DOJ tobacco lawsuit. According to the article: "The American Legacy Foundation, which runs the 'Truth' antismoking campaign, wants the cash and, with the help of its friends, has been angling to get it."

The article describes the mission of the Citizens' Commission to Protect the Truth as "to ensure that the 'Truth' campaign continues" and describes the Commission's efforts to obtain funding for the campaign, including filing amicus briefs in several tobacco cases that could involve billions of dollars for successful plaintiffs, including the DOJ case and an Illinois case. "Getting judges to award damage claims from tobacco cases to Legacy has become a key strategy for the commission. Califano's commission has become the conduit for making such requests."

The Rest of the Story

Adweek clearly has the impression that the Citizens' Commission's primary goal is to advocate for funding for Legacy. This would be all well and good, except for one small problem: "Principal funding for The Commission comes from the National Association of Attorneys General (NAAG) through a $1.5 million pass-through grant from the American Legacy Foundation."

This means that Legacy is essentially funding an organization whose primary activity is to advocate for funding for Legacy under the guise of being some sort of independent commission on behalf of citizens.

The Citizens' Commission has already testified to that effect in court, telling a judge that it is not affiliated with Legacy: "The Commission is not affiliated with Legacy. It is an independent organization developed to serve the public health in connection with tobacco use and prevention."

The Citizens' Commission has gone to great lengths not to disclose its relationship with Legacy. It wasn't until its latest amicus brief that it even mentioned its financial relationship with Legacy. But even in that brief, it failed to acknowledge that it is affiliated with the very foundation that funds it, that provides major grant support to the Center run by its director, and whose Treasurer is also the president of the association from which the money originates in the first place.

In other words, the Citizens' Commission is essentially a front group, funded by Legacy and advocating for funding for Legacy, but failing to be forthright about the nature of its financial relationships with Legacy, all while implying publicly that it is some sort of "independent" commission representing the interests of the "citizens."

Since we in tobacco control have long attacked the tobacco industry for its use of front groups and have spent much time discussing the lack of ethics inherent in the industry's use of front groups, is it not equally unethical for us to be using this same industry tactic?

Thursday, June 23, 2005

New York Times Magazine Features Article on Reduced Risk Cigarettes

A June 12 article in The New York Times Magazine presents a detailed discussion of the issue of PREPs (potentially reduced-exposure products) and their potential role as a tobacco control harm reduction strategy (see: Gertner J. Incendiary Device. The New York Times Magazine. June 12, 2005).

The article focuses on a new type of cigarette, called Fact, which utilizes a special filter which apparently removes a number of carcinogenic components of the tobacco smoke and substantially reduces the smoke's mutagenic activity. The cigarette, produced by an independent tobacco company in North Carolina using the special filter produced by a biotechnology company (Filigent) in Hong Kong, is reported to go on sale later this month in several states.

The introduction of PREPs, like Fact, into the marketplace also introduces a number of very difficult scientific and public policy issues for tobacco control practitioners. If they are indeed effective in eliminating or greatly reducing an entire class of toxic or carcinogenic constituents in tobacco smoke across the board, such products could have a huge positive impact on the public's health by reducing smoking-related disease and mortality risks. On the other hand, since the chemistry of tobacco pyrolysis is extremely complex, these new technologies could potentially result in increased levels of other toxins. Moreover, it is difficult to determine the impact of these PREPs on human disease rates and it would take many years to conduct the longitudinal studies necessary to make such determinations. Finally, it is a theoretical possibility that even if PREPs reduce disease risks, the overall public health burden of smoking could actually increase if the result of these PREPs is to convince smokers who might otherwise have quit entirely to switch to a reduced-risk cigarette.

The Rest of the Story

In the article, Dr. Ken Warner, long-time tobacco control researcher and policy expert and new dean of the School of Public Health at the University of Michigan, calls the debate over PREPs "the most complicated thing I've ever encountered in 30 years of working on tobacco policy." In light of Dr. Warner's statement (and he has far greater experience in this area than I do), I am afraid that I cannot offer any easy answers to this dilemma. But I do think the article sheds light on a number of points that are clear and which are important for tobacco control practitioners and advocates to understand.

First, if it is unclear whether a new technology that filters out entire classes of toxic compounds will improve the public's health, there is certainly no basis for claiming that a federal regulation that may reduce or eliminate a number of specific smoke constituents is going to save lives. However, this is exactly the kind of nonsensical claim that is being made by many public health organizations in supporting the currently proposed FDA tobacco legislation.

As the article explains: "The science of tobacco is so murky, and the links between the components of smoke and illness so tenuously understood, that many researchers question whether reducing the exposure of smokers to certain chemicals can actually reduce the risk of disease. What's more, a so-called safer cigarette that removes some carcinogens might inadvertently raise the levels of other toxins, a phenomenon that has already been observed in some PREP's."

So the first thing that I think is clear is that an approach of regulating certain specific toxins, as proposed in the FDA legislation, makes no sense and contrary to statements of many public health groups, there is no basis to claim that it will save lives.

Second, it will be extremely difficult to evaluate the public health impact of any new PREPs and at best, such an evaluation will take many years, probably decades. This means that it will be virtually impossible for any cigarette company to meet the burden of proof required by the proposed FDA legislation before a reduced risk product can be marketed. Because the FDA legislation requires that a manufacturer demonstrate that the proposed reduced risk product will "significantly reduce harm and the risk of tobacco-related disease to individual tobacco users; and benefit the health of the population as a whole taking into account both users of tobacco products and persons who do not currently use tobacco products," the FDA legislation essentially represents a ban on reduced risk products, as it creates an impossible burden for tobacco companies and takes away any incentive to research, develop, and market what may be true reduced risk tobacco products.

As the article explains: "Any reliable epidemiological studies on smokers are longitudinal in nature, meaning they can require several decades and a large group of subjects to show meaningful results. It hasn't been until the last few years, for instance, that public health officials have begun to correlate the rise in adenocarcinoma, a cancer deep in the lungs and often difficult to detect, to the introduction of the low-nicotine light and ultra-light cigarettes that became popular in the 1970s and 1980s. ... it could be 20 years before anyone understands just how well, or how poorly, Filigent works. ... it's possible we may never understand."

Third, if it could be 20 years before anyone understands just how well or how poorly a new filter (which reduces an entire class of toxins) works, then there is no basis on which to allow cigarette companies to make claims of reduced health risks for a product that merely reduces or eliminates one tobacco smoke constituent. Yet that is essentially what the proposed FDA legislation would do. Cigarette companies could market a product as a "reduced risk" product if it appears to reduce the level of even a single cigarette component. The company merely has to show that it anticipates that long-term studies will demonstrate a health benefit. Specifically, the company need only demonstrate that: "the scientific evidence that is available without conducting long-term epidemiological studies demonstrates that a measurable and substantial reduction in morbidity or mortality among individual tobacco users is anticipated in subsequent studies."

The problem is that a reduced exposure claim is almost certainly going to be interpreted by the public as meaning that the product will reduce health risks. In this way, the FDA legislation essentially institutionalizes the ability of cigarette companies to make unsubstantiated health claims (or at least, claims that will be interpreted by the public as health claims).

Finally, given the potential for a substantial benefit of reduced risk products and even taking into account the possible harms of such a harm reduction approach, it seems prudent to at least keep the door open for such an approach while the public health community considers the issues. Enacting the FDA legislation currently on the table would immediately and for all time end the debate by eliminating the possibility of true reduced risk tobacco products as a harm reduction strategy in tobacco control.

The answers to the difficult questions posed by the introduction of potentially reduced-exposure products are not readily available and much more discussion is warranted; however, one thing is quite clear. The FDA legislation currently supported by Philip Morris and a large number of public health groups is not the answer.

Virtual Protest on Washington Today Seeks Restoration of $130 Billion Remedy

Today is the Virtual Protest on Washington, organized by the Campaign for Tobacco-Free Kids. The protest seeks primarily to convince the Department of Justice to restore its request for a $130 billion remedy that would cover the costs of a national smoking cessation program for all current smokers.

The basic premise for this campaign is that: "The U.S. Department of Justice is trying to let Big Tobacco off the hook to the tune of $120 billion."

The Rest of the Story

While the idea of a protest to put pressure on the Bush Administration and senior Department of Justice officials is a nice one, the basic premise for this particular protest is severely flawed. After all, the premise that DOJ is trying to let Big Tobacco off the hook to the tune of $120 billion assumes that Big Tobacco was ever on the hook for that $120 billion.

The fact is: Big Tobacco was never on the hook for the $130 billion requested for a smoking cessation program for current smokers because that request was inconsistent with the D.C. Court of Appeals' interpretation of the RICO law governing this case.

Perhaps DOJ let Big Tobacco off the hook, but they certainly did not let Big Tobacco off the hook to the tune of $120 billion. In fact, the government will never see a penny of the $10 billion it now requests to fund a smoking cessation program for newly-addicted smokers. That too, is inconsistent with the RICO statute because it is quite indirectly tied to future RICO violations. There are many factors that could lead to smokers becoming addicted in the future; continuing RICO violations are just one of them and there is no way to determine how many smokers became addicted due to RICO violations compared to other causes.

It still ceases to amaze me how the Campaign for Tobacco-Free Kids and several other anti-smoking organizations are unable to see this case in anything other than monetary terms.

Wednesday, June 22, 2005

IN MY VIEW: Why Anti-Smoking Groups Misleading the Public is Such a Problem

A number of readers have asked why it is that I have commented extensively on ANR's (Americans for Nonsmokers' Rights) action alert that I believe has misled the public. After all, isn't the real enemy the tobacco industry and isn't that where we in public health should all be putting our focus? Shouldn't we all be joining together for that purpose?

Actually, I think the primary focus of any public health organization and all public health advocates should be, first and foremost, to be responsible and ethical in its actions. To me, responsible and ethical means being careful to communicate health issues in a way that is intellectually honest and forthright and that can reasonably be expected not to mislead the public.

The claim that Robert McCallum is a former tobacco industry lawyer is most certainly going to lead many readers of ANR's alert to believe that he previously represented the tobacco industry. The truth, however, is that he was a partner in a law firm that did tobacco industry work, but he himself did not represent tobacco clients.

Why is this distinction so important? Because it is going to have substantial implications for how the public views McCallum's character. If the public believes he was a partner in a law firm that did tobacco industry work but that he has never represented a tobacco client in his life, then I believe the public will perceive much less of an egregious violation of ethical standards by this individual. They may not even find anything inappropriate about the action, or they may at least have some indecision about the propriety of the individual. (Clearly, there is some feeling that McCallum's participation in the case is not entirely inappropriate as he was officially cleared by the DOJ Ethics Office.)

However, if the public believes he was a tobacco industry lawyer (that is, he represented a tobacco company in the past), then I believe the public will perceive this individual as having egregiously violated ethical standards by participating in the DOJ tobacco lawsuit and his character and reputation will be completely shot in the public's eye.

If ANR is going to contribute to diminishing the character and reputation of an individual in the public's eye, then I think it should at least be based on an accurate perception of the truth.

The fact that ANR is a public health organization with a mission of reducing tobacco-related disease and not a political organization with some political agenda as its primary aim is critical in my judgment that the burden of assuring accurate information in its personal attack on McCallum is on the organization.

This is why I do not find it overwhelmingly disturbing that politicians have used the same misleading information in their attack against McCallum. Politicians issue these kinds of personal attacks every day but individual political gain is arguably the primary end of those politicians. I'm not stating that's it's right, I'm just suggesting that politicians and political organizations are out there primarily to achieve political ends. Contributors to these organizations are donating money specifically for these purposes.

But not so with public health organizations. Contributors are donating money because they expect it will be used to prevent smoking-related disease, not to issue personal attacks on individuals using misleading information. The burden of assuring accurate information in issuing a personal attack shifts far in the direction of that organization. Anything less than extreme care in assuring that its communications are not misleading to the public, especially if it is attacking an individual, does not seem acceptable or appropriate in light of the expectations of contributors to that organization.

But more importantly, anything less than extreme care in assuring that its communications are not misleading to the public in an attack on an individual does not seem acceptable or appropriate in light of basic ethical standards of conduct for a public health organization.

Right now, I honestly believe that the biggest enemy of the tobacco control movement is its own loss of integrity. I believe that right now, by pointing out where we may have gone awry and hopefully, helping to steer us back on track, I can make a greater contribution to the effort to reduce smoking-related morbidity and mortality than I could by joining others in their incessant political attacks. Politicians and political appointees will come and go, but the reputation of the tobacco control movement is here to stay.

Push for Outdoor Smoking Bans Spreads

In recent days, there have been a number of efforts to ban smoking in non-enclosed outdoor areas:
  • The Mandeville City Council (Louisiana) recently adopted an ordinance that bans smoking in most public places, including outdoor areas within 25 feet of buildings and all outdoor areas within the town's parks and parkways, including the entire lakefront. This measure allows smoking in bars and restaurants that serve liquor.
  • Tuesday, the Lafayette City-Parish Council (Louisiana) adopted a similar measure that bans smoking inside and within 25 feet of most businesses, but which allows smoking in bars and restaurants that serve alcohol.
  • The Buffalo Grove (Illinois) Park District is reportedly thinking about banning smoking on all park property, including parking lots. Apparently, the ban idea was sparked by the park board president having "noted that smokers have been spotted in such areas as a Willow Stream Park shelter, while he has seen Buffalo Grove Recreation Association Senior Colt baseball players smoking in a district parking lot."
  • Last Monday, the township of Cherry Hill (New Jersey) enacted a law that bans smoking on all township property, including all outdoor open areas.
  • In Muscatine (Iowa), an anti-smoking group (Tobacco-Free Muscatine) recently lobbied the City Council to ban smoking on city property, including the full outdoor grounds areas of some city buildings, such as a soccer complex and an aquatic center. The City Council did adopt a smoking ban covering some city building property, but rejected Tobacco Free Muscatine's request to ban smoking in the soccer and aquatic center parking lots.
The Rest of the Story

In general, I do not find adequate justification for banning smoking in most open outdoor areas; as I previously argued, the use of the state's police power must represent a reasonable intervention to promote the public's health, safety, or welfare and there is little evidence that smoking in open outdoor areas is a serious cause of disease or other adverse health effects.

While eliminating smoking in certain outdoor parts of town or city property may be reasonable, the measures listed above go too far, I think, by banning smoking even in large, open areas, such as parking lots and the entire lakefront of one town, where nonsmokers could easily avoid secondhand smoke if they chose to and where exposure is likely to be minimal, both in magnitude and duration.

But an even more troublesome aspect of many of the above laws is that in banning smoking outdoors, but allowing it in heavily polluted indoor workplaces, they make little public health sense. If secondhand smoke is indeed as serious a public health hazard as claimed, then it should certainly be eliminated in smoke-filled bars and restaurants where workers are exposed to high concentrations of carcinogens for 8 or more hours a day before policy makers worry about banning smoking in outdoor places like parking lots where exposure is minimal.

How much sense does it make to allow smoking in bars and restaurants, but to ban smoking outside of those buildings? If anything, that is likely to harm the public's health by discouraging smokers from smoking outside these establishments, and thus resulting in higher smoke concentrations inside. The same may be true of banning smoking in parking lots. While many smokers are courteous and may smoke in a parking area to avoid exposing nonsmokers in a park, when you ban smoking in the parking lot, you may actually be discouraging smokers from smoking in areas away from nonsmokers. Why punish precisely those smokers who are showing courtesy for nonsmokers?

While it is certainly not the fault of anti-smoking groups if policy makers adopt these broad outdoor smoking bans without their organizations' support, in at least one case (Muscatine), the broad outdoor smoking ban was apparently pushed by an anti-smoking organization. I view this as a serious problem.

Not only do I believe that such policies are not justified on public health grounds, that they make absolutely no public health sense, and that they may actually harm the public's health by increasing exposure in some areas, but I think there is a larger problem here:

By promoting such measures, I think public health practitioners may actually do more harm than good. This casts the idea of regulating smoking in public places as being overly intrusive and takes the focus away from the real issue that should be most relevant to such regulations - health risks to exposed employees in enclosed workplaces. By framing the issue in a way that detracts from the proper use of the state's police powers, general outdoor smoking bans may actually undermine efforts to protect employees who are heavily exposed and actually need protection.

Tuesday, June 21, 2005

Americans for Nonsmokers' Rights Still Deceiving American Public

Despite being made aware over the weekend of one very misleading and one inaccurate claim on its web site, the anti-smoking group Americans for Nonsmokers' Rights has failed to alter the content of the action alert on that site to correct or clarify the false and misleading information.

As reported here on Saturday: In an action alert intended to outrage its readers and stir them to demand an investigation of the recent change in the Department of Justice's requested smoking cessation remedy, Americans for Nonsmokers' Rights (ANR) informs the public that Associate Attorney General Robert McCallum is a "former tobacco industry lawyer." The alert also informs the public that: "The only rationale given [for the change in smoking cessation remedy] was that the cessation services should only be provided to future smokers addicted in the first year after the trial."

As of this morning, the ANR web site still claims that Robert McCallum is a "former tobacco industry lawyer."

The web site also continues to fail to mention that the DOJ gave a legitimate legal explanation for its rationale in substituting a $10 billion smoking cessation remedy for the original $130 billion request. Whether sincere in its statement or not, the government does now claim that the remedy was changed in order to comply with the appellate court decision which does not allow backwards-looking remedies, such as the $130 billion plan proposed by a government expert witness.

The Rest of the Story

ANR's original failure to present accurate information on its web site regarding McCallum's employment history could have been a simple oversight or could have been due to an errant newspaper report or to the Waxman and Meehan letter's errant claim. If so, then the original mistake is excusable. It is not necessarily ANR's fault if the information they possess is incorrect. However, the claim that remains on the web site at this time can no longer be said to be an oversight or due to errant information. The organization is now well aware (or should be) that this information is false, as the inaccuracy was pointed out to them and they have had enough time to verify the information and correct it.

From the best available information I can obtain, McCallum never represented the tobacco industry in any litigation - he is not a former tobacco industry lawyer. He did work for a law firm that represented R.J. Reynolds, but that doesn't make him a tobacco industry lawyer if he was not involved in those cases.

The persistence of this inaccurate claim on ANR's web site can now only be assumed to be a deliberate decision, since it easily could have been corrected. Unless, for some reason, ANR was unable to access its web server yesterday in order to fix the error or there is some widespread cover-up going on and ANR possesses information that no one else seems to have. I have no reason to believe that either of these is the case.

There are two explanations for the presence of what I perceive as this false information on the ANR web site. First, it could be that ANR disagrees with my assertion that Robert McCallum is not a former tobacco industry lawyer. If so, then McCallum must have lied to the DOJ Ethics Office in order to gain clearance to participate in the case, as DOJ spokesperson Tasia Scolinos made it clear that no lawyer working on the DOJ case previously represented the tobacco industry in litigation. Or else, she is also lying.

Second, it could be that ANR agrees with my assessment, but doesn't care. And that's a really disturbing possibility. Because no matter how important we may think the ends are that we're working towards, it doesn't justify the use of unethical tactics to achieve those ends. And distorting the truth is unethical, especially if an organization misleads the public in the setting of trying to stir that public to take political action.

Ironically, one of the main points of the action alert is that Big Tobacco lied about scientific information: "Smokefree campaigns around the country would benefit from Big Tobacco admissions that they lied about health effects of secondhand smoke." I can't see how it could be wrong for Big Tobacco to lie, but not for ANR to communicate false information.

In light of the Campaign for Tobacco-Free Kids' deceptive communication to its constituents claiming that Big Tobacco was vigorously fighting the proposed FDA legislation (when Philip Morris was and is vigorously supporting the legislation), it seems to be harder and harder now to find anti-smoking groups that place any serious value in being honest and forthright in their communications.

Ultimately, ANR's misleading claims, if they remain uncorrected, are going to damage the entire anti-smoking movement. After all, telling the truth has always been the thing that has completely separated us from Big Tobacco. Will we be able to continue saying that if this type of behavior continues?

Campaign for Tobacco-Free Kids Still Focused on $120 Billion

In a statement released yesterday, the Campaign for Tobacco-Free Kids made it clear that its number one priority in its advocacy related to the DOJ tobacco case is for the government to restore its request for a $130 billion cessation program for current smokers: "The government has presented a very strong case against the tobacco companies and should not back away from the strong remedies recommended by its own expert witnesses."

The Rest of the Story

Since the $130 billion backwards-looking smoking cessation remedy is the only requested remedy that the government has backed away from, the Campaign's statement is basically focusing on restoring the $130 billion request as the key to the case right now. I think this is a huge mistake for several reasons.

First, it is a waste of time and it is irrelevant to the case at the current time. The appellate court has made it clear that a backwards-looking remedy intended to remedy past industry wrongs is not allowable under the RICO statute. So even if the government increases its request to $1 trillion, it is not going to strengthen its case. It is inappropriate and from a legal perspective quite silly to be putting so much emphasis on the amount of money being requested for a remedy that is not allowable under the law that is currently governing the case.

Second, it takes the focus off the areas where it should be. There are really only two things that the government can do right now to strengthen its case (and both can be done simultaneously):
  • It can appeal the D.C. Court of Appeals decision to the Supreme Court, in the hope that it will be overturned. If it is overturned, then not only the smoking cessation remedy but the disgorgement remedy will then become available. I doubt that the decision will be overturned by this Court, but it is not unreasonable to appeal such a decision.
  • It can quit pretending that the appellate court decision does not exist, and it can actually try to fashion some meaningful remedies that are consistent with the decision.
If the Campaign for Tobacco-Free Kids and other anti-smoking groups really want to help strengthen the government's case, then I think they should: (1) stop wailing about the irrelevant remedies which are a complete distraction from the true issue at hand; (2) push DOJ to appeal the appellate court decision to the Supreme Court; and (3) help develop some specific remedies that are allowable under the appellate court decision by spelling out exactly the types of marketing restrictions that would be most effective in restraining future RICO violations while at the same time not represent an infringement of the tobacco companies' First Amendment rights.

Monday, June 20, 2005

IN MY VIEW: Focus on Money Destroyed DOJ Case from the Start

Anti-smoking groups are now mobilizing to try to save what they perceive as a DOJ tobacco case that fell apart in the past two weeks. But I would argue that the case fell apart long before that (at least if you define "fall apart" by the absence of a possibility of extracting huge monetary penalties from the industry).

My sense is that from the beginning, the case was really about the money. What I guess prompted the lawsuit in the first place was not some conviction that the tobacco companies needed to be brought to justice, but that there was a possibility of the government recovering huge amounts of money. The Clinton Administration observed how the states were successful in extracting huge amounts of money from the tobacco companies based on a claim that the companies were responsible for Medicaid-related expenditures for smoking-related illnesses (those claims were never tested in court, but were apparently worrisome enough to motivate the companies to settle). I think it was seeing the possibility of recovering huge sums of money that probably prompted the suit in the first place.

Let's not forget that the primary legal claim that was made in the lawsuit initially was that the tobacco industry was responsible for billions of dollars that the federal government had spent on Medicaid expenditures to treat diseases caused by smoking. When Judge Kessler dismissed those claims and only the RICO claim remained, the government cleverly argued that disgorgement of past profits was an appropriate RICO remedy. And then when the D.C. Court of Appeals ruled that disgorgement was not allowable as a remedy, DOJ proposed two other remedies that involved large amounts of money: requiring tobacco companies to fund an independent anti-smoking media campaign and requiring the companies to fund a national smoking cessation program for current smokers.

Those two proposed remedies - the anti-smoking media campaign and the smoking cessation program - are clearly not consistent with the RICO statute, in that they are designed primarily to redress past industry wrongs, not to prevent and restrain future RICO violations. Thus, the decrease in the amount requested for the smoking cessation remedy (from $130 billion to $10 billion) does not change the legal strength of the case at all.

But what the law means here is that there is no available remedy by which the government can extract substantial amounts of money from the tobacco industry. And in the eyes of the anti-smoking community, that apparently represents a travesty.

I have to admit that I'm troubled by this response - because in my eyes, a travesty would be if the government were not able to hold the companies accountable to the greatest extent allowed under the law. But if the law simply doesn't provide any basis to extract a huge pot of money, then failing to recieve that money isn't a travesty, it's the law.

To me, the shame of the whole case is that not enough thought went into the devising of legal remedies to directly prevent and restrain future RICO violations. Once the D.C. Court of Appeals decision was handed down, this should have been the focus of the case. Since the primary racketeering violations relate to marketing activities, it seems that the appropriate remedies would relate to direct restrictions on company marketing. These would, of course, have to be consistent with the First Amendment, but that's where the focus of the case needs to be.

In fact, I argued on April 20 (long before the case was "destroyed") that: "It is my opinion that the Department of Justice should focus the remedies portion of its case on the following two remedies that I think are both consistent with section 1964(a) (and likely to withstand appeal) and likely to have substantial public health benefits in terms of reducing tobacco use and improving health: 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 substantial changes in cigarette labeling and packaging, including larger, stronger, and more graphic warning labels. In fact, I think that barring an unexpected Supreme Court reversal of the Appeals Court's disgorgement ruling, the potential value of the DOJ case now rests upon how successful it is in bringing about substantial, meaningful changes in tobacco product advertising, marketing, labeling, and packaging, which could directly prevent the tobacco companies from engaging in most of the alleged RICO violations in the future."

I believed at the time that it was really the non-monetary remedies that were going to define the success of the case, since I felt that the monetary remedies were not consistent with the law. But so much focus was given to the monetary remedies that the case is now being viewed as a complete disaster, even though the non-monetary remedies could still be alive and well.

But apparently, that is not enough. Without the money, it does not appear that anti-smoking groups can possibly be satisfied. And the government most likely feels that the case is not worth continuing without a chance for the money; thus, a settlement is likely.

What happened to the basic principle of justice? What happened to the principle of demonstrating, in a court of law, that the tobacco industry's behavior was in violation of the law, and why is it not of value to achieve justice by obtaining such a court decision and imposing remedies that could directly restrain future violations?

I'll tell you what happened to that principle of justice? Nothing! It was never there in the first place. It was, and will remain: all about the money.

Saturday, June 18, 2005

Americans for Nonsmokers' Rights Uses False Information to Stir Members to Action

In an action alert intended to outrage its readers and stir them to demand an investigation of the recent change in the Department of Justice's requested smoking cessation remedy, Americans for Nonsmokers' Rights (ANR) informs the public that Associate Attorney General Robert McCallum is "a former tobacco industry lawyer."

The alert also informs the public that: "The only rationale given [for the change in smoking cessation remedy] was that the cessation services should only be provided to future smokers addicted in the first year after the trial."

The alert concludes by asking readers to demand an investigation into "why DOJ reversed their position on cessation, whether high-ranking DOJ employees interfered with DOJ's case, and whether witnesses have been coerced into softening their testimony."

At the same time, ANR has posted and will apparently take out an advertisement accusing the Justice Department of having a "cancer" in it and of trying to "torpedo" the case because of its being led by political appointees with tobacco ties.

The ad also states that: "Remedies prescribed by the government’s expert witnesses include making the industry fund a full generation of smoking cessation programs worth $130 billion, stop marketing to kids and deceiving adults about addictiveness, and more."

The Rest of the Story

There is no question that an investigation into the Department of Justice's handling of the tobacco lawsuit is warranted and it is perfectly appropriate for ANR to call for such an investigation. However, I do not think it is appropriate or ethical for ANR to use misleading or false information in its attempt to stir readers to action.

In its action alert, ANR presents false information by informing the public that Robert McCallum was a former tobacco industry lawyer. From the best available information I can find, McCallum has never represented any tobacco industry client.

No matter how egregious the Justice Department's actions may be, I do not think that justifies an organization using false information to attempt to motivate the public to action. Especially when that false information could defame the character of an individual in the public eye, and on false grounds.

With minimal research, ANR could have found out that McCallum worked for a law firm that did work for R.J. Reynolds but that he did not represent the company himself. The careless disregard for the truth, especially when making a personal attack, is not justified in my opinion, no matter how important we may feel the ultimate cause is.

According to ANR's claim, one would have to conclude that anyone who has ever worked for a firm that represented a tobacco client was a "tobacco industry lawyer." Given the size of the firms that represent Big Tobacco, this would make the majority of the attorneys in this country "tobacco lawyers."

There are a number of other problems with ANR's actions:

1. First, ANR also misleads the public in stating that "the only rationale given [for the change in smoking cessation remedy] was that the cessation services should only be provided to future smokers addicted in the first year after the trial." Actually, the rationale given was not that the cessation services should be provided to future smokers, but that the laws of the United States, as interpreted by the D.C. Court of Appeals, clearly do not allow a backwards-looking remedy such as requiring a cessation program for current smokers. A forwards-looking remedy (a cessation program for future smokers) was justified by DOJ on the grounds that it represented a remedy that was consistent with the appellate court decision in this case, and therefore, more likely to actually be upheld.

2. Second, ANR seems to be passing along a misunderstanding of the way the lawsuit works in stating that remedies were "prescribed" by expert witnesses. The witnesses in the case do not prescribe remedies; they provide expert testimony that the lawyers in the case may use to support the remedies they decide to request. But the decision to request remedies is the lawyers alone and they are under no obligation to follow the exact recommendations of the witnesses. They have other important considerations to take into account: namely, the law and what it allows.

3. Third, it seems inappropriate to me for ANR to call for an investigation of DOJ on the one hand, and on the other hand (and at the same time), to attack DOJ and proclaim that they have torpedoed the case for political reasons. If ANR has enough information to conclude that DOJ's political appointees have torpedoed the case, then there is no need to waste taxpayer's money on an investigation. And once ANR has called for an investigation, it undermines the investigation to prematurely attack DOJ and to conclude, before the investigation, that political appointees have torpedoed the case.

You can't have it both ways. Either call for an investigation and be sincere about that call by waiting for the findings before bashing the Bush Administration. Or, just bash them but don't call for an investigation to support your bashing. This has the appearance of ANR making a political attack first, and then hoping that the investigation will provide the findings to support their action.

I will not address here what I think is a more fundamental problem with these actions by ANR: namely, that the change in the requested smoking cessation remedy actually strengthens the case, rather than torpedoes it, because there was no chance for a backwards-looking $130 billion program to be upheld, but there's at least some chance that a forward-looking $10 billion remedy could be upheld (see previous posts for more details on that argument).

The rest of the story reveals that in its zeal to attack the Bush Administration's political appointees for killing the DOJ tobacco case, ANR has been careless with the truth and has misled the public in two important ways. While the ultimate aim of putting pressure on the Administration not to settle the DOJ case may be a good one, the tactics being used by ANR to achieve this aim are at best inappropriate, and at worst, unethical.

Friday, June 17, 2005

IN MY VIEW: It's All About the Money for Some Anti-Smoking Groups

If one thing has become clear to me over the course of the past two weeks, it's that it's all about the money. In response to my seemingly rational argument that it makes more sense to ask for a more narrow remedy that has a chance of being upheld than a broader remedy that has no chance of being upheld, I have received many responses, most of which are not appropriate to be mentioned here. But the one response I have not received from any anti-smoking group or advocate is that my basic premise is wrong.

And, I think, for good reason. I think it makes a lot of sense. Why would asking for $130 billion for a smoking cessation program for all current smokers have any chance of being upheld, given the clear decision of the appellate court in this case? A program for current smokers is most definitely a backwards-looking remedy, intended to redress past industry wrongs and restore the status quo. This is precisely what the D.C. Court of Appeals ruled was not permissible under RICO.

On the other hand, a $10 billion cessation program for current smokers does at least have a chance of being upheld, since it is intended to address future RICO violations. If the companies continue to commit such violations and addict new smokers as a result, then requiring them to pay for cessation programs for those smokers could be seen to be a way to prevent such violations. It is a forward-looking remedy and it may be allowable under RICO.

So the choice is really between asking for $130 billion and with almost 100% certainty getting nothing, and asking for $10 billion with a chance to get $10 billion or even more (if violations continue in the future, beyond the initial five-year period). It seems logical that $10 billion is better than $0.

But not a single anti-smoking group or individual has addressed this basic argument. I really think that the DOJ case is stronger now than it was 2 weeks ago, because there is at least a chance of getting a smoking cessation program for future smokers. There was no possibility of getting any smoking cessation program for current smokers.

So why is it, then, that anti-smoking groups are making such a huge fuss about the narrowed remedy?

I can't answer that question, because I don't know for sure. But I would be remiss if I didn't share my impression, which is that the groups seem to be so overwhelmingly concerned with the amount of money and with extracting huge monetary penalties from the tobacco companies. That concern seems to be so over-riding, that it is actually outweighing any concerns whatsoever about the strength of the legal arguments in the case.

Moreover, the recent behavior of major anti-smoking groups over the potential (and completely hypothetical) loss of $120 billion represents a strategic blunder, because they have created the public impression that they are overwhelmingly concerned with the money.

What is also becoming clear is that anti-smoking groups seem more concerned about money than about achieving justice under the law. The law seems to almost be an obstacle in the way of the groups obtaining what they feel is fair monetary reward, or punishment. The D.C. Court of Appeals decision appears to have never occurred, in the eyes of many anti-smoking groups as well as a number of anti-smoking advocates.

In defending their responses to me, many have written about how important it is to achieve justice. Well that is basically arguing that receiving a $130 billion penalty is justice, but anything short of that is not justice.

Actually, I think it's the case that receiving what the government is entitled to under the law is justice, and anything short of that is not justice. And if the government is not entitled to receive $130 billion for a backwards-looking remedy under the law, then being awarded $130 billion is not justice.

Justice is not defined by the penalties and monetary awards that anti-smoking groups would like to have Judge Kessler order to punish the companies for their racketeering behavior. It is defined by the most appropriate and effective remedies that are consistent with the law of the land: namely, with the RICO statute.

Associate Attorney General Robert McCallum Charged with Conflict of Interest

A number of anti-smoking groups were joined by Congressmen Waxman and Meehan and by Ralph Nader in charging Associate Attorney General Robert McCallum with a conflict of interest violation in his involvement in the Department of Justice's tobacco lawsuit. McCallum, a political appointee, was primarily responsible for the Justice Department's decision to request a $10 billion smoking cessation remedy for future smokers, rather than a $130 billion program for current smokers, as originally proposed.

The conflict of interest charge has two main grounds:
1) Before his appointment to the Justice Department in 2001, McCallum had been a partner at Alston & Bird, an Atlanta-based firm that has done trademark and patent work for R.J. Reynolds; and
2) In 2002, McCallum signed an administration amicus brief urging the Supreme Court not to consider an appeal by the government of Canada to reinstate a cigarette smuggling case against R.J. Reynolds that had been dismissed.

Nader's complaint states that McCallum violated DOJ ethics rules stating that: "If you are an attorney, you will have to disqualify yourself in cases you handled before entering the Government, and from other matters involving your former law firm or clients for a certain period, usually several years." Nader's complaint does note that an employee is permitted "to participate in a matter about which he has an apparent conflict if he is authorized by an appropriate agency designee."

Congressmen Waxman and Meehan's complaint states: "We ask you to investigate the role of Associate Attorney General Robert D. McCallum, Jr., a former tobacco industry lawyer, in this surprising reversal." It also states that: "prior to joining the Justice Department, Mr. McCallum ... had signed a Supreme Court brief on behalf of the company [R.J. Reynolds]."

The Rest of the Story

Although anti-smoking groups have been quick to attack McCallum for violating ethics rules by participating in the case, it is not clear at this point whether a conflict of interest exists and whether McCallum violated ethics rules in failing to recuse himself from the tobacco case.

First, the simple fact that McCallum previously worked for a law firm that represented R.J. Reynolds in patent and trademark work does not necessarily mean that there is a conflict of interest in his participation in any tobacco case in the future. According to the information that has been made available, McCallum has never represented any tobacco company. The fact that he worked for a firm that represented R.J. Reynolds certainly does disqualify him from participating in any and all tobacco litigation while employed at the firm, but once he leaves the firm, the question becomes: Does the matter at hand involve his former law firm and how long has it been since he left the firm?

The fact that his former firm did patent and trademark work for R.J. Reynolds may or may not mean that the DOJ tobacco litigation matter involves Alston & Bird. Had McCallum represented R.J. Reynolds, this would be a no-brainer. But simply working for a firm that represented R.J. Reynolds in matters that may actually be unrelated to the subject matter of the litigation in question (I'm not aware that it involves any issues of trademarks or patents) is something that I think would require a very serious examination by an ethical body within the Department of Justice in order to either clear or disqualify McCallum from participation in the case.

The fact of the matter is that McCallum apparently did seek guidance from the DOJ's Ethics Office, and received clearance to participate both in the smuggling matter and in the tobacco lawsuit. By seeking clearance before participating in these cases, McCallum acted, I think, appropriately. It still does not mean that there is not a conflict of interest, because it is possible that the Ethics Office made an erroneous decision. However, I think that if McCallum was cleared, he was cleared, and until more information is available that bears on the specific details involved, it is premature to attack the man for violating conflict of interest ethics rules. Again, I'm not saying he's innocent, I'm just saying that more detailed information is necessary to make a judgment about whether his former employment with a firm that represented R.J. Reynolds in patent work represents a disqualifying conflict of interest.

The key issue really hinges upon the question of whether or not the tobacco litigation matter involves his former law firm. I just don't know enough about the specific work of Alston & Bird in prior and current tobacco cases to be able to make that determination. I don't have enough information, and I wouldn't presume to be knowledgeable enough to be the one to make a determination of whether McCallum should be cleared or disqualified from the tobacco case.

My basic feeling here is that while an investigation into the matter is certainly warranted, it is premature to be attacking McCallum for ethics violations. After all, he complied with DOJ ethics rules (as far as I can tell) and sought Ethics Committee clearance and obtained it prior to participating in any tobacco-related case.

But there is one thing that I think is clear. The Waxman and Meehan letter presents some very misleading, if not inaccurate, information.

Number one - the letter states that McCallum is a "former tobacco industry lawyer." This is not true from what I can tell. So far as I can tell from the available information, he has never represented R.J. Reynolds in his life. When he worked for Alston & Bird, he apparently did not represent R.J. Reynolds in any of his work. And since working for the Justice Department, he obviously has not represented R.J. Reynolds.

Number two - the letter states that prior to coming to the Justice Department, McCallum "signed a Supreme Court brief on behalf of the company [R.J. Reynolds]." This appears to be inaccurate or at least misleading on two accounts. The amicus brief he signed pertains to work he did for the Department of Justice, not Alston & Bird. And he did not sign the brief on behalf of R.J. Reynolds, he signed it on behalf of the Department of Justice.

There is a serious concern about whether McCallum's work on the smuggling case represents a conflict of interest as well - but he was apparently cleared for that case. I certainly think investigation is warranted there as well. But again, I would want to see all the information that the DOJ Ethics Committee had available before making an ethics determination.

Whatever the seriousness of any ethics violations McCallum committed may be, it does not justify misleading the Inspector General (or possibly, presenting inaccurate information) in order to attempt to indict McCallum. He certainly deserves a hearing based on factual information.

The rest of the story reveals that there is a very serious concern about the possibility that Associate Attorney General Robert D. McCallum, Jr. committed a severe ethics violation by participating in the DOJ tobacco case and/or the earlier tobacco smuggling case. However, the issue is a bit more complex than some anti-smoking groups and others have led us to believe. He was not, as two Congresspersons claimed, a tobacco industry lawyer, according to the best available information that I can obtain. And he never represented R.J. Reynolds or filed any brief on the company's behalf (again, as far as I can find with available information).

There is no question that an ethics investigation is warranted. However, since McCallum was cleared by the DOJ Ethics Office, it is appropriate to wait until the facts are available before attacking him for ethics violations.

Finally, none of this really addresses the issue of whether McCallum's insistence on a forward-looking smoking cessation remedy rather than a backwards-looking remedy was due to a desire to protect the tobacco companies or a desire to present a case that was legally appropriate (i.e., consistent with the law of the land as interpreted by the appellate court for the case).

UPDATE (June 17, 2005; 2:00 pm): In a letter to the editor in today's New York Times, Department of Justice public affairs director Tasia Scolinos denies anti-smoking groups' and Times editorial accusations that there was political interference in the case. She explains that ethics rules regarding lawyers who previously worked on tobacco cases were followed: "You suggest that there was inappropriate political influence in this decision-making. But department ethics clearly state that any and all lawyers who formerly worked on tobacco litigation must recuse themselves from this case, and we have abided by these requirements." It sounds like this statement is arguing that since McCallum never represented any tobacco company, he is not necessarily required to recuse himself from the case. The issue is more complex than this, and it does involve a consideration of whether the tobacco lawsuit involves his former law firm in any way. But that's exactly the point. This is at least somewhat complex and further information is needed to make a proper judgment. McCallum may well be guilty of violating ethics rules, but public health groups need to wait for the necessary information before rushing into personal and political attacks.

Thursday, June 16, 2005

New York Times Article Suggests that DOJ Trial Team had Little Appreciation for Importance of Appellate Court Decision

According to a New York Times article published today, there was a vigorous battle between lawyers prosecuting the DOJ case and their superiors over the nature of the proposed smoking cessation remedy. According to the article, most of the career lawyers, with the exception of Frank Marine, were adamant about requesting a $130 billion smoking cessation program that would cover all current smokers. In contrast, Associate Attorney General Robert McCallum insisted upon a $10 billion program that would only cover future smokers (i.e., newly addicted smokers in the future, after the court's decision in the case).

The article reports that McCallum essentially took the case into his own hands, and forced the DOJ trial lawyers to request the $10 billion remedy. He may also have played a role in writing the closing arguments in the case. Further, there is a suggestion that he may now be giving more of a leading role to Marine, and pushing the other trial lawyers more into the background. In particular, Marine may be asked to write the proposed order on penalties. The other trial lawyers were quite upset about being forced to change their approach, felt the case would be greatly weakened if not destroyed, and warned about allegations of political interference.

Perhaps most interesting is that the trial lawyers (with the exception of Marine) apparently felt that there was no legal basis for the change in remedy.

The Rest of the Story

Although some anti-smoking advocates are using this article as "proof" that it was Bush administration political interference that led to the change in smoking cessation remedy, the article does not really add much evidence to that argument. After all, while it is now eminently clear that there was a vehement disagreement on the remedy between most of the trial lawyers and the Associate Attorney General, the article still does not demonstrate what the reasoning was that led senior DOJ officials to insist on a $10 billion forward-looking remedy, rather than a $130 billion backwards-looking remedy.

One possibility that still remains is that the change was due to the fact that the $130 billion remedy was backwards-looking while the $10 billion remedy was forwards-looking, and the D.C. Court of Appeals had ruled that forward-looking, but not backwards-looking remedies were allowable under the RICO statute. It would only make sense, from both a legal and tactical standpoint, to propose a remedy that was consistent with the appellate court decision rather than one that was inconsistent with that decision.

Another possibility is that the Bush administration is committed to sabotaging the case and that it interfered in order to protect tobacco industry profits.

I don't know which possibility represents the truth, but the point is that if I were a public health organization receiving donations from people expressly for the purpose of conquering heart disease, lung disease, cancer, or even smoking, I would not use that money to make definitive charges of political interference unless I had more information. That is all I am saying - nothing more and nothing less.

The most telling information from the article, however, is the extent to which the trial lawyers appear to be completely oblivious to the appellate court's decision. Their apparent failure to appreciate any legal basis for the suggested change from a backwards- to a forward-looking remedy is puzzling, given the clarity of the D.C. Appeals Court's ruling.

While the interference of Associate Attorney General Robert McCallum in the case is disturbing, I cannot think of what else senior DOJ officials could have done to ensure that there was at least some chance of obtaining a smoking cessation remedy.

What I'm also puzzled about is why many public health groups seem to think that the $130 billion remedy was so critical to the case, given that it is widely agreed that such a remedy would never have been upheld. What great victory can possibly come from winning the case but having your remedies overturned? Wouldn't it represent a greater victory to win the case and come away with remedies that are upheld?

The only way I can make sense out of all of this is to posit that the DOJ trial lawyers were convinced of their legal reasoning, that they were committed to appealing the suit to the Supreme Court, and they felt that the Supreme Court would overrule the appellate court, thus paving the way for a substantial set of financial remedies, including the $130 billion, and perhaps a disgorgement remedy as well.

The only flaw in this thinking is that the trial lawyers, in the memo obtained by the Times, apparently argued that the $130 billion smoking cessation plan for current smokers was "in keeping with the appellate court's 'forward looking' approach."

I simply don't understand this. I wrote back on April 20, before any of this broke wide open, that a smoking cessation remedy for current smokers would be inconsistent with section 1964(a) of the RICO statute because it was clearly a backwards-looking remedy.

Here is what I posted on April 20: "I do not think that forcing the companies to fund smoking cessation programs for smokers is consistent with section 1964(a), nor is it likely to be upheld by the Appeals Court. I do not see how funding a smoking cessation program has anything to do with changing tobacco company conduct with regard to the alleged RICO violations. Such a remedy appears to be aimed at 'remedying the effects of past conduct to restore the status quo,' exactly what the Appeals Court ruled was not permissible under RICO."

And on May 23, exactly one week before the memo in which DOJ lawyers were discussing the nature of this remedy, I wrote: "While a national smoking cessation program would be of great public health benefit, I do not think that forcing the companies to fund smoking cessation programs is consistent with section 18 U.S.C. section 1964(a) (the civil remedies provision of the RICO statute) and is therefore not likely to be upheld by the Appeals Court. I do not see how funding a smoking cessation program has anything to do with changing tobacco company conduct with regard to the alleged RICO violations. Such a remedy appears to be aimed at 'remedying the effects of past conduct to restore the status quo,' exactly what the Appeals Court ruled was not permissible under RICO. It's not clear to me how forcing the companies to fund smoking cessation would help prevent and restrain future RICO violations."

So I don't see it as a mystery that a smoking cessation remedy for current smokers might just be viewed as inconsistent with the law (as interpreted by the appellate court). How the trial lawyers could fail to see any legal basis for suggesting that such a remedy was not appropriate under the appellate court's decision is, however, a mystery to me.