In a press release issued Friday, the Campaign for Tobacco-Free Kids attempts to convince the American public that Philip Morris is not a changed, responsible company as it has publicly claimed. This argument is based on the company's opposition to cigarette tax increases in a number of states: "Philip Morris' opposition to cigarette tax increases shows that the supposedly changed company is a wolf in sheep's clothing." The Campaign's basic argument is that if Philip Morris truly didn't want kids to smoke, why would it oppose cigarette tax increases?
The Rest of the Story
First of all, while I obviously agree with the Campaign's basic contention that Philip Morris has not changed in terms of its commitment to being socially responsible, what a stupid argument the Campaign makes.
Let us suppose for a minute that Philip Morris did actually change and it did not want kids to smoke. If that were the case, then it would become absolutely essential for the company to maintain adult smokers and to maintain them at existing or even higher levels of cigarette consumption. The last thing in the world the company would want is to increase cigarette taxes, which would significantly reduce adult cigarette consumption (as well as smoking among youths).
So I find the argument that it is Philip Morris' continued opposition to cigarette taxes that demonstrates its lack of interest in eliminating youth cigarette consumption to be ridiculous. Of course Philip Morris continues to want kids to smoke. But its opposition to tax increases isn't the evidence for that - its vigorous marketing of cigarettes to kids is!
But two other points are perhaps more important to consider:
First, if the Campaign for Tobacco-Free Kids is really concerned about convincing the public that Philip Morris has not changed, then it is shooting itself in the foot by standing shoulder-to-shoulder with Philip Morris in supporting FDA tobacco legislation. What could possibly convince the public that Philip Morris has changed more than to observe that a leading anti-smoking organization has now joined forces with the company to promote passage of a jointly-supported piece of legislation - one that the Campaign has suggested is a vital public health initiative that may save millions of lives?
The Campaign is doing more to legitimize Philip Morris' attempt to convince the American public that it has changed than anything the company could have possibly imagined.
Second, if the Campaign's argument that Philip Morris has not changed is true, then why in the world is the Campaign standing shoulder-to-shoulder with Philip Morris in promoting this jointly-supported piece of legislation?
If what the Campaign for Tobacco-Free Kids says about the FDA legislation is true, then Philip Morris most certainly has changed: because this would mark the first time that the company has supported federal legislation that would truly advance the interests of the public's health. The Campaign can't have it both ways. It can't say, out of one side of its mouth, that Philip Morris has not changed, and out of the other side of its mouth, suggest that Philip Morris is now supporting legislation that would do wonders for the public's health.
If Philip Morris is truly a wolf in sheep's clothing, then why is the Campaign for Tobacco-Free Kids working towards the achievement of the chief legislative priority for the wolf?
Sunday, July 17, 2005
Friday, July 15, 2005
With Deadline to Appeal to Supreme Court Just One Business Day Away, Some Anti-Smoking Groups are Still Dwelling on the Money
With just one business day left before the DOJ's opportunity to appeal the D.C. Court of Appeals decision that disallows disgorgement and other backwards-looking remedies in the government's RICO lawsuit against the tobacco companies disappears, the American Lung Association has today on its website an action alert and letter that focuses solely on the Justice Department's reduction of the requested smoking cessation program from $130 billion to $10 billion, and fails to ask constituents to urge DOJ to appeal the court decision that disallows that very remedy in the first place.
The alert states: "Initially, a remedy sought by the Department of Justice was a $5 billion-per-year comprehensive tobacco cessation effort over the next 25 years to help every smoker who wants to quit. However, the trial ended with a surprise request from the Justice Department that the tobacco companies only fund a $2 billion per year, five-year smoking cessation program. The American Lung Association and many other health organizations are outraged at the unexpected weakening change in approach. Media accounts suggest that this change may be the result of tobacco industry influence on senior Justice Department officials."
And the letter states: "I am writing to voice my opposition to the weakening changes in remedies proposed during the closing days of the RICO lawsuit against the tobacco industry. Cutting the remedy to $2 billion per year for a five-year nationwide stop-smoking program is woefully inadequate. The Department of Justice's own expert witness testified that more than $5 billion per year was needed over the next 25 years to help the 45 million already-addicted smokers quit. ... The Justice Department has put forth a strong case against the tobacco industry and should use this opportunity to hold the industry accountable for its wrongful behavior and reduce tobacco's terrible toll. I urge you to insist on the strong remedies recommended by your own expert witnesses, including fundamental reform of the industry's harmful marketing practices; the establishment of well-funded, sustained, nationwide programs to prevent kids from smoking and help smokers quit; and financial penalties against the tobacco companies should they continue to addict our children."
The Rest of the Story
Is the American Lung Association not aware that the law governing the DOJ case simply does not allow most of the remedies that it urges its constituents to demand and that the only way to allow such remedies would be for the Supreme Court to overturn the appellate court's decision? A more effective action alert, in my opinion, would alert constituents to the fact that the D.C. Court of Appeals decision effectively does not allow any monetary remedies and that the only way for that to change is for those constituents to convince the Administration and the Justice Department, in the next 3 days, to appeal to the Supreme Court.
Smoke-Free Pennsylvania and the Tobacco Products Liability Project have done just that and should be applauded for having enough legal insight and good judgment to be able to see that an appeal to the Supreme Court is the only effective way to correct the perceived problem. Complaining about the money and the political interference may feel good, but it isn't going to do anything to achieve a $130 billion smoking cessation program, because such a program is simply not allowable under the current law governing the case.
It's difficult for me to think of a rationale behind the Lung Association's seeming obsession with the money, rather than with the important strategic and legal issue in the case, which right now is the potential appeal to the Supreme Court. The only thing that seems plausible to me is that there is an obsession with the money and that is why many of the anti-smoking groups are whining and complaining about the loss of $120 billion, but paying little or no heed to the legal facts of the case, which are that even a $1 dollar smoking cessation program for current smokers is not a permissible remedy under the RICO statute, given the way that the D.C. Court of Appeals has interpreted the statute.
Do I think that an appeal to the Supreme Court will actually make a difference? In the long run, no. That is because the RICO statute seems pretty clearly written to me and I don't see much ambiguity in its civil remedies provision, which makes it clear that remedies must be designed to prevent and restrain future RICO violations. I also think it is unlikely to make a difference because if there are enough votes on the Court to overturn the appellate court decision, the 5th majority vote will most likely have to come from whoever is the replacement for Sandra Day O'Connor, and I see that being someone who likely will see this issue in the same way that the D.C. Court of Appeals has.
Nevertheless, anything can happen and I could well be wrong. The vote in the appellate court decision was 2-1 and the vote not to accept the case for a decision by the entire appellate court was 3-3. At very least, appealing the case to the Supreme Court would buy time for the Department (since Judge Kessler would most certainly wait until after the Court's decision to issue her own decision).
If I was rating the anti-smoking organizations like the American Lung Association likes to rate the states, I would have to give ALA an F for strategic thinking and an NP (not present) for legal savvy.
The alert states: "Initially, a remedy sought by the Department of Justice was a $5 billion-per-year comprehensive tobacco cessation effort over the next 25 years to help every smoker who wants to quit. However, the trial ended with a surprise request from the Justice Department that the tobacco companies only fund a $2 billion per year, five-year smoking cessation program. The American Lung Association and many other health organizations are outraged at the unexpected weakening change in approach. Media accounts suggest that this change may be the result of tobacco industry influence on senior Justice Department officials."
And the letter states: "I am writing to voice my opposition to the weakening changes in remedies proposed during the closing days of the RICO lawsuit against the tobacco industry. Cutting the remedy to $2 billion per year for a five-year nationwide stop-smoking program is woefully inadequate. The Department of Justice's own expert witness testified that more than $5 billion per year was needed over the next 25 years to help the 45 million already-addicted smokers quit. ... The Justice Department has put forth a strong case against the tobacco industry and should use this opportunity to hold the industry accountable for its wrongful behavior and reduce tobacco's terrible toll. I urge you to insist on the strong remedies recommended by your own expert witnesses, including fundamental reform of the industry's harmful marketing practices; the establishment of well-funded, sustained, nationwide programs to prevent kids from smoking and help smokers quit; and financial penalties against the tobacco companies should they continue to addict our children."
The Rest of the Story
Is the American Lung Association not aware that the law governing the DOJ case simply does not allow most of the remedies that it urges its constituents to demand and that the only way to allow such remedies would be for the Supreme Court to overturn the appellate court's decision? A more effective action alert, in my opinion, would alert constituents to the fact that the D.C. Court of Appeals decision effectively does not allow any monetary remedies and that the only way for that to change is for those constituents to convince the Administration and the Justice Department, in the next 3 days, to appeal to the Supreme Court.
Smoke-Free Pennsylvania and the Tobacco Products Liability Project have done just that and should be applauded for having enough legal insight and good judgment to be able to see that an appeal to the Supreme Court is the only effective way to correct the perceived problem. Complaining about the money and the political interference may feel good, but it isn't going to do anything to achieve a $130 billion smoking cessation program, because such a program is simply not allowable under the current law governing the case.
It's difficult for me to think of a rationale behind the Lung Association's seeming obsession with the money, rather than with the important strategic and legal issue in the case, which right now is the potential appeal to the Supreme Court. The only thing that seems plausible to me is that there is an obsession with the money and that is why many of the anti-smoking groups are whining and complaining about the loss of $120 billion, but paying little or no heed to the legal facts of the case, which are that even a $1 dollar smoking cessation program for current smokers is not a permissible remedy under the RICO statute, given the way that the D.C. Court of Appeals has interpreted the statute.
Do I think that an appeal to the Supreme Court will actually make a difference? In the long run, no. That is because the RICO statute seems pretty clearly written to me and I don't see much ambiguity in its civil remedies provision, which makes it clear that remedies must be designed to prevent and restrain future RICO violations. I also think it is unlikely to make a difference because if there are enough votes on the Court to overturn the appellate court decision, the 5th majority vote will most likely have to come from whoever is the replacement for Sandra Day O'Connor, and I see that being someone who likely will see this issue in the same way that the D.C. Court of Appeals has.
Nevertheless, anything can happen and I could well be wrong. The vote in the appellate court decision was 2-1 and the vote not to accept the case for a decision by the entire appellate court was 3-3. At very least, appealing the case to the Supreme Court would buy time for the Department (since Judge Kessler would most certainly wait until after the Court's decision to issue her own decision).
If I was rating the anti-smoking organizations like the American Lung Association likes to rate the states, I would have to give ALA an F for strategic thinking and an NP (not present) for legal savvy.
IN MY VIEW: Cigarette Taxes to Balance State Budgets are Not Only Unfair, They are Harmful for Tobacco Control
While I have already argued (post 1; post 2; post 3) that cigarette taxes designed to balance state budgets are discriminatory, regressive, and unfair because they force smokers to pay for services that the state should otherwise be providing, I here will argue that such taxes are detrimental to tobacco control. There are two major reasons for this:
First, these taxes create a fiscal dependence for the state on cigarette consumption. By relying on cigarette consumption to fund critical state budget items or to balance state budgets, these taxes make the state dependent on cigarette consumption. This policy removes any incentive for state lawmakers to take any action that may decrease cigarette consumption. For public health groups to support or applaud such initiatives is like driving a stake through the heart of the tobacco control movement in those states, because it effectively eliminates any chances for effective tobacco control policy or programs at the state level. In fact, I can't think of anything worse one could do to hinder state tobacco control efforts.
Second, these taxes stave off the potential for effective state tobacco control policy for many years. They do this in two ways. First, they give legislators political cover. By voting for a cigarette tax increase, they can say that they have supported a tobacco control measure, and it becomes more difficult for public health groups to put pressure on these legislators to support tobacco control measures in the future. Second, they make it more difficult to get major tobacco policy measures on the legislative agenda in the future and they devastate any potential for the most effective intervention in tobacco control: the creation of comprehensive, statewide tobacco control programs (which could otherwise be funded from cigarette tax revenues).
This is one reason why I cringe when I see groups like the Campaign for Tobacco-Free Kids praising the Minnesota legislature's decision to balance its budget by increasing the cigarette tax as a huge public health victory. It's actually not a victory for public health. It's a devastating blow to the chances for any meaningful and effective state-level tobacco control for quite some time.
But of course, the more significant reason why I cringe is because I simply think it is wrong to balance the state's budget on the backs of smokers - period.
First, these taxes create a fiscal dependence for the state on cigarette consumption. By relying on cigarette consumption to fund critical state budget items or to balance state budgets, these taxes make the state dependent on cigarette consumption. This policy removes any incentive for state lawmakers to take any action that may decrease cigarette consumption. For public health groups to support or applaud such initiatives is like driving a stake through the heart of the tobacco control movement in those states, because it effectively eliminates any chances for effective tobacco control policy or programs at the state level. In fact, I can't think of anything worse one could do to hinder state tobacco control efforts.
Second, these taxes stave off the potential for effective state tobacco control policy for many years. They do this in two ways. First, they give legislators political cover. By voting for a cigarette tax increase, they can say that they have supported a tobacco control measure, and it becomes more difficult for public health groups to put pressure on these legislators to support tobacco control measures in the future. Second, they make it more difficult to get major tobacco policy measures on the legislative agenda in the future and they devastate any potential for the most effective intervention in tobacco control: the creation of comprehensive, statewide tobacco control programs (which could otherwise be funded from cigarette tax revenues).
This is one reason why I cringe when I see groups like the Campaign for Tobacco-Free Kids praising the Minnesota legislature's decision to balance its budget by increasing the cigarette tax as a huge public health victory. It's actually not a victory for public health. It's a devastating blow to the chances for any meaningful and effective state-level tobacco control for quite some time.
But of course, the more significant reason why I cringe is because I simply think it is wrong to balance the state's budget on the backs of smokers - period.
Faith United Against Tobacco Rallies to Convince Representative DeLay to Support FDA Tobacco Legislation
According to an article in the Houston Chronicle, a coalition of religious leaders from many different faiths staged a media event this week designed to urge House Majority Leader Tom DeLay to support the proposed FDA tobacco legislation currently before Congress. The Texas Teen Ambassador for Tobacco Prevention spoke at the press conference.
The Rest of the Story
While the coalition organizing this event is certainly well-intentioned, I wonder whether the coalition is aware that what it is doing is actually helping Philip Morris to lobby for the piece of legislation that it would most like to have enacted this year in Congress. I wonder whether the coalition is aware that the bill contains several key provisions that Philip Morris desired in the legislation, and that the bill would likely protect the financial interests of the nation's largest cigarette company at the expense of FDA's ability to meaningfully regulate tobacco products (i.e., unfettered authority to regulate the product on scientific grounds only and without political interference). I also wonder whether the youth or youths involved in this press conference were made aware that Philip Morris is strongly on board with them, and that the bill they are jointly lobbying for is one of Philip Morris' legislative priorities for 2005.
Just wondering...
The Rest of the Story
While the coalition organizing this event is certainly well-intentioned, I wonder whether the coalition is aware that what it is doing is actually helping Philip Morris to lobby for the piece of legislation that it would most like to have enacted this year in Congress. I wonder whether the coalition is aware that the bill contains several key provisions that Philip Morris desired in the legislation, and that the bill would likely protect the financial interests of the nation's largest cigarette company at the expense of FDA's ability to meaningfully regulate tobacco products (i.e., unfettered authority to regulate the product on scientific grounds only and without political interference). I also wonder whether the youth or youths involved in this press conference were made aware that Philip Morris is strongly on board with them, and that the bill they are jointly lobbying for is one of Philip Morris' legislative priorities for 2005.
Just wondering...
Thursday, July 14, 2005
Minnesota Legislature Votes to Balance Budget on Backs of Smokers
The Minnesota legislature today voted to close a state budget shortfall and prevent a government shutdown by raising the state cigarette excise tax by 75 cents per pack. Apparently, none of the revenue raised will be dedicated to providing any services for smokers. The tobacco tax increase was specifically cited as being the mechanism by which the budget was balanced: "the Minnesota Legislature wrapped up work Wednesday on a two-year state budget balanced with $401 million in new tobacco revenue."
Several state representatives criticized the tax as being regressive and penalizing the state's poorest citizens in order to protect the state's wealthiest corporations: "Reps. Tim Mahoney, DFL-St. Paul, and Tom Rukavina, DFL-Virginia, said the tobacco fee represents a regressive tax on the state's poorest citizens -- the result, Rukavina said, of Pawlenty's attempts to shelter corporations and the wealthy from tax increases."
The Campaign for Tobacco-Free Kids immediately praised the tax increase, calling it a victory for "taxpayers."
The Rest of the Story
What the Campaign for Tobacco-Free Kids praises as a victory for taxpayers may be a victory, but it is certainly not a victory for those taxpayers who happen to smoke. It is certainly not a victory for the lowest income citizens in Minnesota who are going to bear the burden of balancing the state budget on their shoulders.
It is, however, a major victory for the wealthiest corporations and citizens of Minnesota, who are now protected from having to do their share to make up for the budget shortfall.
What just transpired in Minnesota, in my view, is nothing more than a discriminatory and regressive tax increase for some of the poorest citizens in the state, for the benefit of the wealthiest citizens and corporations.
Smokers in Minnesota have been selected out to bear the full burden of financing the state programs that the legislature should be funding through other means. It is on the backs of smokers that the budget has been balanced.
And the ultimate insult is that the very same legislature which is now asking smokers to pay for the necessary state services that no politician wants to cut or to ask the wealthy to finance two years ago decimated the state's services for those very smokers, destroying a program dedicated to preventing youth smoking and encouraging smokers to quit.
So smokers in Minnesota are hit doubly hard: on the one hand, their own services are destroyed and in short order, they are now asked to shoulder the burden of balancing the state budget.
And the saddest part of this, for me, is that a leading "so-called" public health group has praised this strategy as a victory for Minnesota taxpayers.
I certainly agree that it is indeed a victory -- for the wealthy taxpayers in Minnesota who are now off the hook. It is also a victory for corporate taxpayers.
But it is certainly not a victory for the highly addicted smokers who have now been charged with the responsibility of supporting the state's general services and balancing the budget. It is little more than a political victory for legislators who can now avoid having to lose votes from the most powerful voting block in the state - corporations and the wealthy. It is a victory that comes at the direct expense of the very population that public health practitioners should have the most compassion for - smokers.
This is not a public health measure in any way, shape or form and public health organizations have no business, in my opinion, supporting or praising such a measure. It's simply a fiscal and political maneuver.
It actually, in my opinion, is a detriment to tobacco control in the state because: (1) it leaves politicians off the hook for decimating the state's tobacco control program; they can now claim that they are politically correct by having increased the cigarette tax and the difficult political issue of whether to fund the anti-smoking program or not can be further pushed off into the future; and (2) it makes the state dependent on cigarette consumption for the most vital resources of the state: those necessary to balance the budget. It has completely taken away any legislative incentive to promote any kind of vigorous smoking cessation or smoking prevention program.
Several state representatives criticized the tax as being regressive and penalizing the state's poorest citizens in order to protect the state's wealthiest corporations: "Reps. Tim Mahoney, DFL-St. Paul, and Tom Rukavina, DFL-Virginia, said the tobacco fee represents a regressive tax on the state's poorest citizens -- the result, Rukavina said, of Pawlenty's attempts to shelter corporations and the wealthy from tax increases."
The Campaign for Tobacco-Free Kids immediately praised the tax increase, calling it a victory for "taxpayers."
The Rest of the Story
What the Campaign for Tobacco-Free Kids praises as a victory for taxpayers may be a victory, but it is certainly not a victory for those taxpayers who happen to smoke. It is certainly not a victory for the lowest income citizens in Minnesota who are going to bear the burden of balancing the state budget on their shoulders.
It is, however, a major victory for the wealthiest corporations and citizens of Minnesota, who are now protected from having to do their share to make up for the budget shortfall.
What just transpired in Minnesota, in my view, is nothing more than a discriminatory and regressive tax increase for some of the poorest citizens in the state, for the benefit of the wealthiest citizens and corporations.
Smokers in Minnesota have been selected out to bear the full burden of financing the state programs that the legislature should be funding through other means. It is on the backs of smokers that the budget has been balanced.
And the ultimate insult is that the very same legislature which is now asking smokers to pay for the necessary state services that no politician wants to cut or to ask the wealthy to finance two years ago decimated the state's services for those very smokers, destroying a program dedicated to preventing youth smoking and encouraging smokers to quit.
So smokers in Minnesota are hit doubly hard: on the one hand, their own services are destroyed and in short order, they are now asked to shoulder the burden of balancing the state budget.
And the saddest part of this, for me, is that a leading "so-called" public health group has praised this strategy as a victory for Minnesota taxpayers.
I certainly agree that it is indeed a victory -- for the wealthy taxpayers in Minnesota who are now off the hook. It is also a victory for corporate taxpayers.
But it is certainly not a victory for the highly addicted smokers who have now been charged with the responsibility of supporting the state's general services and balancing the budget. It is little more than a political victory for legislators who can now avoid having to lose votes from the most powerful voting block in the state - corporations and the wealthy. It is a victory that comes at the direct expense of the very population that public health practitioners should have the most compassion for - smokers.
This is not a public health measure in any way, shape or form and public health organizations have no business, in my opinion, supporting or praising such a measure. It's simply a fiscal and political maneuver.
It actually, in my opinion, is a detriment to tobacco control in the state because: (1) it leaves politicians off the hook for decimating the state's tobacco control program; they can now claim that they are politically correct by having increased the cigarette tax and the difficult political issue of whether to fund the anti-smoking program or not can be further pushed off into the future; and (2) it makes the state dependent on cigarette consumption for the most vital resources of the state: those necessary to balance the budget. It has completely taken away any legislative incentive to promote any kind of vigorous smoking cessation or smoking prevention program.
Deadline for DOJ to Appeal D.C. Circuit Court Ruling Looms
This coming Monday is the deadline for the Department of Justice to appeal (to the U.S. Supreme Court) the D.C. Circuit Court ruling that disallowed disgorgement of past tobacco industry profits as a potential remedy should the tobacco companies be found guilty of committing RICO violations. The ruling also disallows, in very clear terms, any potential remedy that focuses on past industry behavior and that is not designed specifically to prevent and restrain future tobacco company RICO violations.
Although there was at least one indication that DOJ was seriously considering an appeal to the Supreme Court, it is simply unclear at this time whether an appeal is planned. But the answer will come within the next three business days.
The Rest of the Story
What is most surprising to me is that despite all of the hullabaloo that anti-smoking groups have made about the Department of Justice's narrowing of the smoking cessation remedy that it initially requested (from $130 billion to $10 billion) and despite the intense anti-smoking group campaigns to malign the character and intentions of the senior lawyers involved in the case, there has been almost no attempt on the part of the anti-smoking community to try to mobilize a serious campaign to put pressure on DOJ to appeal the D.C. Court of Appeals' ruling to the Supreme Court.
While a number of anti-smoking groups, including the Campaign for Tobacco-Free Kids, American Cancer Society, American Heart Association, American Lung Association, and Americans for Nonsmokers' Rights have been quite vocal about the so-called devastation of the lawsuit that was a result of the change in the requested smoking cessation remedy and have engaged in a very strongly political campaign to protest what they see as the Bush Administration's role in destroying the case, the list of anti-smoking groups that have made any serious recent effort (to the best of my knowledge) to urge the public to pressure DOJ to appeal the all-important appellate court's legal ruling to the Supreme Court is rather small:
Smoke-Free Pennsylvania (see earlier post)
American Medical Association (see press release)
The Campaign for Tobacco-Free Kids' website has a number of action alerts and requests for donations that focus on the need to put pressure on the Bush administration to strengthen the proposed remedies, but I can find nothing encouraging its constituents to pressure DOJ to appeal the appellate court's ruling to the Supreme Court, other than a statement issued immediately after the appellate court ruling which did, in fact, urge DOJ to immediately appeal the ruling. In fact, unless I am missing something, the major current summary that the Campaign provides of the case does not even mention the D.C. Court of Appeals' ruling. What happened to the April 20 statement? Why has the Campaign not focused on pushing for an appeal of the appellate court ruling in recent weeks, when it would have been most important?
Similarly, the Americans for Nonsmokers' Rights website urges its constituents to rally against what ANR claims is political interference by a former tobacco industry lawyer (Associate Attorney General Robert McCallum, a lawyer who has never represented any tobacco company in a legal case), but, unless I am missing something, fails to urge citizens to take the only action which really has any chance of affecting the desired outcome of the case: appealing the appellate court ruling to the Supreme Court.
Another typical example is the American Lung Association, whose Minnesota chapter sent out an action alert and sample letter which urges DOJ to restore the $130 billion remedy (a worthless request in my opinion due to its lack of legal basis) but fails to urge DOJ to appeal the very decision that disallows that $130 billion remedy. But the very same action alert mentions that the letter which 50 U.S. Congresspersons sent to Attorney General Gonzales did ask him to appeal the decision.
As a member of the public health community who is on mailing lists for most of the major organizations above, I can attest to the fact that while I have been asked to accuse the Administration of political interference in the case and while I have been asked to accuse Robert McCallum of ethical misconduct, I have not been asked (other than by the 2 organizations listed above and in the April 20 Tobacco-Free Kids statement) to urge DOJ and/or the Administration to appeal to the Supreme Court.
I guess that I just find it absurd that anti-smoking groups are putting so much focus on trying to restore the $130 billion remedy, but very little focus on trying to overturn the very court decision that disallows the $130 billion remedy in the first place.
Let's face it. The only chance that anti-smoking organizations have of achieving the kind of result they would like to see (i.e., lots of $$$$$$ for anti-smoking programs) is for DOJ to appeal the case to the Supreme Court and for the Supreme Court to reverse the appellate court's decision and thus pave the way for disgorgement of past profits as a remedy, as well as the bulk of other remedies currently requested by the Department. Under the current law governing the case, it has essentially become a non-monetary case.
So first, on strategic grounds, I must commend Smoke-Free Pennsylvania and the American Medical Association for having enough legal insight to see that appealing the case to the Supreme Court is the only way, strategically, to have any chance of achieving a monetary outcome.
But at the same time, I must admit that it really is beginning to look like the bulk of the anti-smoking groups out there either have no idea of the legal issues involved in the case (they are acting as if the D.C. Court of Appeals doesn't exist or as if they didn't read its decision) or that they are simply trying to take advantage of a golden opportunity to take a swat at the Bush Administration in a way that is unlikely to have any tangible outcome on the fate of the lawsuit.
I also think it is important to point out that the non-monetary remedies requested by DOJ are hardly insubstantial and even without monetary remedies, one would think that anti-smoking groups would find the case worthwhile pursuing. In some ways, I think that making such a big stink over monetary remedies which have no chance of being upheld is detracting from the potential non-monetary remedies, some of which may not only be upheld, but may also result in substantial changes in tobacco industry marketing behavior.
Finally, I should note that I think it unlikely that the Supreme Court is going to overturn the D.C. Court of Appeals ruling, because I find the language in the RICO statute to be quite clear in requiring remedies under its civil provisions to be forward-looking remedies that directly prevent and restrain future RICO violations.
Here is the relevant provision in the RICO statue and the most relevant aspect of the D.C. Court of Appeals ruling, so that The Rest of the Story readers will be fully aware of the legal issues involved in the case:
Civil Remedies Section of RICO Statute:
"The district courts of the United States shall have jurisdiction to prevent and restrain violations of section 1962 of this chapter by issuing appropriate orders, including, but not limited to: ordering any person to divest himself of any interest, direct or indirect, in any enterprise; imposing reasonable restrictions on the future activities or investments of any person, including, but not limited to, prohibiting any person from engaging in the same type of endeavor as the enterprise engaged in, the activities of which affect interstate or foreign commerce; or ordering dissolution or reorganization of any enterprise, making due provision for the rights of innocent persons."
Relevant Aspect of D.C. Circuit Court of Appeals Decision:
"Section 1964(a) provides jurisdiction to issue a variety of orders 'to prevent and restrain' RICO violations. This language indicates that the jurisdiction is limited to forward-looking remedies that are aimed at future violations. ... Divestment, injunctions against persons’ future involvement in the activities in which the RICO enterprise had been engaged, and dissolution of the enterprise are all aimed at separating the RICO criminal from the enterprise so that he cannot commit violations in the future. Disgorgement, on the other hand, is a quintessentially backwardlooking remedy focused on remedying the effects of past conduct to restore the status quo. ... It is measured by the amount of prior unlawful gains and is awarded without respect to whether the defendant will act unlawfully in the future. Thus it is both aimed at and measured by past conduct."
UPDATE (Friday, July 15, 2005; 12:20 pm): The Tobacco Products Liability Project today became the third group I am aware of to issue an action alert urging constituents to pressure DOJ to appeal to the Supreme Court.
Although there was at least one indication that DOJ was seriously considering an appeal to the Supreme Court, it is simply unclear at this time whether an appeal is planned. But the answer will come within the next three business days.
The Rest of the Story
What is most surprising to me is that despite all of the hullabaloo that anti-smoking groups have made about the Department of Justice's narrowing of the smoking cessation remedy that it initially requested (from $130 billion to $10 billion) and despite the intense anti-smoking group campaigns to malign the character and intentions of the senior lawyers involved in the case, there has been almost no attempt on the part of the anti-smoking community to try to mobilize a serious campaign to put pressure on DOJ to appeal the D.C. Court of Appeals' ruling to the Supreme Court.
While a number of anti-smoking groups, including the Campaign for Tobacco-Free Kids, American Cancer Society, American Heart Association, American Lung Association, and Americans for Nonsmokers' Rights have been quite vocal about the so-called devastation of the lawsuit that was a result of the change in the requested smoking cessation remedy and have engaged in a very strongly political campaign to protest what they see as the Bush Administration's role in destroying the case, the list of anti-smoking groups that have made any serious recent effort (to the best of my knowledge) to urge the public to pressure DOJ to appeal the all-important appellate court's legal ruling to the Supreme Court is rather small:
Smoke-Free Pennsylvania (see earlier post)
American Medical Association (see press release)
The Campaign for Tobacco-Free Kids' website has a number of action alerts and requests for donations that focus on the need to put pressure on the Bush administration to strengthen the proposed remedies, but I can find nothing encouraging its constituents to pressure DOJ to appeal the appellate court's ruling to the Supreme Court, other than a statement issued immediately after the appellate court ruling which did, in fact, urge DOJ to immediately appeal the ruling. In fact, unless I am missing something, the major current summary that the Campaign provides of the case does not even mention the D.C. Court of Appeals' ruling. What happened to the April 20 statement? Why has the Campaign not focused on pushing for an appeal of the appellate court ruling in recent weeks, when it would have been most important?
Similarly, the Americans for Nonsmokers' Rights website urges its constituents to rally against what ANR claims is political interference by a former tobacco industry lawyer (Associate Attorney General Robert McCallum, a lawyer who has never represented any tobacco company in a legal case), but, unless I am missing something, fails to urge citizens to take the only action which really has any chance of affecting the desired outcome of the case: appealing the appellate court ruling to the Supreme Court.
Another typical example is the American Lung Association, whose Minnesota chapter sent out an action alert and sample letter which urges DOJ to restore the $130 billion remedy (a worthless request in my opinion due to its lack of legal basis) but fails to urge DOJ to appeal the very decision that disallows that $130 billion remedy. But the very same action alert mentions that the letter which 50 U.S. Congresspersons sent to Attorney General Gonzales did ask him to appeal the decision.
As a member of the public health community who is on mailing lists for most of the major organizations above, I can attest to the fact that while I have been asked to accuse the Administration of political interference in the case and while I have been asked to accuse Robert McCallum of ethical misconduct, I have not been asked (other than by the 2 organizations listed above and in the April 20 Tobacco-Free Kids statement) to urge DOJ and/or the Administration to appeal to the Supreme Court.
I guess that I just find it absurd that anti-smoking groups are putting so much focus on trying to restore the $130 billion remedy, but very little focus on trying to overturn the very court decision that disallows the $130 billion remedy in the first place.
Let's face it. The only chance that anti-smoking organizations have of achieving the kind of result they would like to see (i.e., lots of $$$$$$ for anti-smoking programs) is for DOJ to appeal the case to the Supreme Court and for the Supreme Court to reverse the appellate court's decision and thus pave the way for disgorgement of past profits as a remedy, as well as the bulk of other remedies currently requested by the Department. Under the current law governing the case, it has essentially become a non-monetary case.
So first, on strategic grounds, I must commend Smoke-Free Pennsylvania and the American Medical Association for having enough legal insight to see that appealing the case to the Supreme Court is the only way, strategically, to have any chance of achieving a monetary outcome.
But at the same time, I must admit that it really is beginning to look like the bulk of the anti-smoking groups out there either have no idea of the legal issues involved in the case (they are acting as if the D.C. Court of Appeals doesn't exist or as if they didn't read its decision) or that they are simply trying to take advantage of a golden opportunity to take a swat at the Bush Administration in a way that is unlikely to have any tangible outcome on the fate of the lawsuit.
I also think it is important to point out that the non-monetary remedies requested by DOJ are hardly insubstantial and even without monetary remedies, one would think that anti-smoking groups would find the case worthwhile pursuing. In some ways, I think that making such a big stink over monetary remedies which have no chance of being upheld is detracting from the potential non-monetary remedies, some of which may not only be upheld, but may also result in substantial changes in tobacco industry marketing behavior.
Finally, I should note that I think it unlikely that the Supreme Court is going to overturn the D.C. Court of Appeals ruling, because I find the language in the RICO statute to be quite clear in requiring remedies under its civil provisions to be forward-looking remedies that directly prevent and restrain future RICO violations.
Here is the relevant provision in the RICO statue and the most relevant aspect of the D.C. Court of Appeals ruling, so that The Rest of the Story readers will be fully aware of the legal issues involved in the case:
Civil Remedies Section of RICO Statute:
"The district courts of the United States shall have jurisdiction to prevent and restrain violations of section 1962 of this chapter by issuing appropriate orders, including, but not limited to: ordering any person to divest himself of any interest, direct or indirect, in any enterprise; imposing reasonable restrictions on the future activities or investments of any person, including, but not limited to, prohibiting any person from engaging in the same type of endeavor as the enterprise engaged in, the activities of which affect interstate or foreign commerce; or ordering dissolution or reorganization of any enterprise, making due provision for the rights of innocent persons."
Relevant Aspect of D.C. Circuit Court of Appeals Decision:
"Section 1964(a) provides jurisdiction to issue a variety of orders 'to prevent and restrain' RICO violations. This language indicates that the jurisdiction is limited to forward-looking remedies that are aimed at future violations. ... Divestment, injunctions against persons’ future involvement in the activities in which the RICO enterprise had been engaged, and dissolution of the enterprise are all aimed at separating the RICO criminal from the enterprise so that he cannot commit violations in the future. Disgorgement, on the other hand, is a quintessentially backwardlooking remedy focused on remedying the effects of past conduct to restore the status quo. ... It is measured by the amount of prior unlawful gains and is awarded without respect to whether the defendant will act unlawfully in the future. Thus it is both aimed at and measured by past conduct."
UPDATE (Friday, July 15, 2005; 12:20 pm): The Tobacco Products Liability Project today became the third group I am aware of to issue an action alert urging constituents to pressure DOJ to appeal to the Supreme Court.
Wednesday, July 13, 2005
New Study Criticizes Use of Tobacco Taxes to Fund State Budget Shortfalls
A new study by Dr. Richard E. Wagner, Professor of Economics at George Mason University, outlines a number of negative consequences of using increases in state cigarette excise taxes as a means to fund government expenses that would otherwise have to be funded from general revenues.
One of the main points made in the article is that cigarette excise tax increases are a form of tax discrimination because they essentially force smokers to bear the burden of paying for programs that benefit others in society: "Tobacco taxation is a severe form of tax discrimination whose victims reside primarily among the working classes and not professional people. It is tax discrimination against people of modest means for the benefit of the well-to-do."
Wagner explains his reasoning: "With rare exceptions, people on whom excise taxes are imposed are not receiving public services in return. ... The victims of excise tax discrimination are forced to finance lower tax payments for those taxpayers who choose to buy things that aren’t taxed. ... The dedication of excise tax revenues for specific purposes is a growing fiscal practice. This practice gives the appearance not simply of raising taxes but of charging users for particular services, similar to the connection between gasoline taxes and road usage. In most cases, however, this analogy between a dedicated excise tax and a user charge fails because there is no connection between tax paid and service received. ... The dedication of cigarette tax revenues in this instance has nothing to do with charging people for their use of governmental services, and everything to do with creating a successful coalition of supporters who would gain from enactment of the measure."
The Rest of the Story
Despite my disagreement with some of the points made in the article, I tend to agree with the basic point it makes: that most excise cigarette taxes are a form of tax discrimination; I also agree that in most cases, such taxes are regressive as they force lower-income people (i.e., smokers) to bear the burden of paying for costs that should otherwise be shared by the general population. In other words, there needs to be some connection between tax paid and service received for a tax not to be considered discriminatory.
When cigarette taxes are raised primarily as a means of providing revenue for services that should have otherwise been funded through other means (i.e., from the general budget), then I view those taxes as being discriminatory and regressive, unless a substantial portion of the revenue raised is appropriated for services dedicated to those who are paying the tax. That is, a cigarette tax increase is generally discriminatory and regressive unless a portion of the revenue is dedicated to providing services specifically to smokers.
I think the key consideration in evaluating cigarette tax increases is whether or not the benefits of the tax accrue disproportionately to a population different from that which is bearing the tax burden.
For example, the Minnesota legislature will decide today whether to increase the excise cigarette tax by 75 cents per pack in order to balance the state budget and make up for what would otherwise be a budget shortfall. It is quite clear that the purpose of the tax, proposed by Republican Governor Tim Pawlenty, is simply to provide revenues to fund programs that the Governor wanted to include in the budget, but did not want to fund through other mechanisms.
In other words, Minnesota has a budget shortfall and the convenient option to make up that shortfall is to ask a disproportionately low-income population - smokers - to pay for those services for everyone else. Highly addicted smokers will carry the burden of paying for services that legislators should be funding anyway. It is up to the smokers of Minnesota to pay to avoid a government shutdown.
Why should the burden of avoiding a government shutdown fall solely on the smokers of Minnesota, especially when they are one of the lower income groups in the state?
The situation might be different if smokers were to be provided with services (such as smoking cessation services to help give them the opportunity to quit or education programs to help motivate them to quit). Then, at least one could argue that smokers are receiving a portion of the benefits of the tax revenue.
Some might argue that smokers will benefit from the tax because many will reduce their consumption or quit. But clearly, that is not the reasoning that is motivating the legislature. If they were that interested in the health and welfare of smokers, they would be doing something to directly help this population and to provide specific government services for them.
The reality is that although some smokers may quit, the majority will not and it is that large majority of smokers who is going to pay to keep the Minnesota state government running.
While the proposed cigarette tax increase in Minnesota is being billed as a "health impact fee," it is, in my mind, simply a discriminatory and regressive tax. It is a fiscal fix, not a public health intervention. And I do not think that public health practitioners should have anything to do with initiatives like this.
One of the main points made in the article is that cigarette excise tax increases are a form of tax discrimination because they essentially force smokers to bear the burden of paying for programs that benefit others in society: "Tobacco taxation is a severe form of tax discrimination whose victims reside primarily among the working classes and not professional people. It is tax discrimination against people of modest means for the benefit of the well-to-do."
Wagner explains his reasoning: "With rare exceptions, people on whom excise taxes are imposed are not receiving public services in return. ... The victims of excise tax discrimination are forced to finance lower tax payments for those taxpayers who choose to buy things that aren’t taxed. ... The dedication of excise tax revenues for specific purposes is a growing fiscal practice. This practice gives the appearance not simply of raising taxes but of charging users for particular services, similar to the connection between gasoline taxes and road usage. In most cases, however, this analogy between a dedicated excise tax and a user charge fails because there is no connection between tax paid and service received. ... The dedication of cigarette tax revenues in this instance has nothing to do with charging people for their use of governmental services, and everything to do with creating a successful coalition of supporters who would gain from enactment of the measure."
The Rest of the Story
Despite my disagreement with some of the points made in the article, I tend to agree with the basic point it makes: that most excise cigarette taxes are a form of tax discrimination; I also agree that in most cases, such taxes are regressive as they force lower-income people (i.e., smokers) to bear the burden of paying for costs that should otherwise be shared by the general population. In other words, there needs to be some connection between tax paid and service received for a tax not to be considered discriminatory.
When cigarette taxes are raised primarily as a means of providing revenue for services that should have otherwise been funded through other means (i.e., from the general budget), then I view those taxes as being discriminatory and regressive, unless a substantial portion of the revenue raised is appropriated for services dedicated to those who are paying the tax. That is, a cigarette tax increase is generally discriminatory and regressive unless a portion of the revenue is dedicated to providing services specifically to smokers.
I think the key consideration in evaluating cigarette tax increases is whether or not the benefits of the tax accrue disproportionately to a population different from that which is bearing the tax burden.
For example, the Minnesota legislature will decide today whether to increase the excise cigarette tax by 75 cents per pack in order to balance the state budget and make up for what would otherwise be a budget shortfall. It is quite clear that the purpose of the tax, proposed by Republican Governor Tim Pawlenty, is simply to provide revenues to fund programs that the Governor wanted to include in the budget, but did not want to fund through other mechanisms.
In other words, Minnesota has a budget shortfall and the convenient option to make up that shortfall is to ask a disproportionately low-income population - smokers - to pay for those services for everyone else. Highly addicted smokers will carry the burden of paying for services that legislators should be funding anyway. It is up to the smokers of Minnesota to pay to avoid a government shutdown.
Why should the burden of avoiding a government shutdown fall solely on the smokers of Minnesota, especially when they are one of the lower income groups in the state?
The situation might be different if smokers were to be provided with services (such as smoking cessation services to help give them the opportunity to quit or education programs to help motivate them to quit). Then, at least one could argue that smokers are receiving a portion of the benefits of the tax revenue.
Some might argue that smokers will benefit from the tax because many will reduce their consumption or quit. But clearly, that is not the reasoning that is motivating the legislature. If they were that interested in the health and welfare of smokers, they would be doing something to directly help this population and to provide specific government services for them.
The reality is that although some smokers may quit, the majority will not and it is that large majority of smokers who is going to pay to keep the Minnesota state government running.
While the proposed cigarette tax increase in Minnesota is being billed as a "health impact fee," it is, in my mind, simply a discriminatory and regressive tax. It is a fiscal fix, not a public health intervention. And I do not think that public health practitioners should have anything to do with initiatives like this.
More Problems with Georgia Smoking Law; Confusion and Delay Abound
An inconsistency in the Georgia Smokefree Air Act of 2005 pointed out by The Rest of the Story is causing confusion and delay in the implementation of the state's new smoking law, which went into effect on July 1. The provision in question is the law's unequal treatment of establishments that allow children, compared to those which allow only adults: restaurants that do not allow minors may allow smoking, while those which permit minors may not allow smoking (except in enclosed, separately ventilated areas). The problem is that apparently, a large number of restaurants that allow children during daytime hours are designating themselves as adult-only during night hours, and allowing smoking at such times.
A decision on whether such an interpretation of the state law is reasonable rests initially with the state's Department of Human Resources, which is charged with enforcing the law. At least one state Senator has stated that he thinks such an interpretation may be workable. But even if the state decides to interpret the law not to allow smoking in restaurants during certain hours when minors are excluded, the option of taking this issue to court remains for restaurant owners.
The Rest of the Story
This is exactly the kind of confusion that public health advocates can expect when they support a law that is so inconsistent that it sets widely differing standards for different types of establishments and makes exclusions based on rather arbitrary (i.e., not health-related) considerations.
It also demonstrates the problems with enacting a state law that creates a widely unlevel playing field for different types of establishments. Restaurants are trying to re-define themselves, within the language of the law, in such a way so that they need not comply with the smoke-free provisions of the law. This is a natural and expected consequence of applying the law unequally to different types of establishments, especially based on criteria that have nothing to do with health protection.
I reiterate what I said in my original post on this issue: If secondhand smoke is as serious a health hazard as public health advocates in Georgia allege, then there is no public health justification for supporting a law that provides protection to only a segment of the population, and that in choosing the segment to be protected, discriminates based on the age of the patrons visiting the establishment. If it is as hazardous as alleged, then ban smoking across the board - create a level playing field for all restaurants. If not, then stop creating such ridiculous impositions on restaurant owners where they are forced to change the nature of their establishments in order to be able to continue to allow smoking.
A decision on whether such an interpretation of the state law is reasonable rests initially with the state's Department of Human Resources, which is charged with enforcing the law. At least one state Senator has stated that he thinks such an interpretation may be workable. But even if the state decides to interpret the law not to allow smoking in restaurants during certain hours when minors are excluded, the option of taking this issue to court remains for restaurant owners.
The Rest of the Story
This is exactly the kind of confusion that public health advocates can expect when they support a law that is so inconsistent that it sets widely differing standards for different types of establishments and makes exclusions based on rather arbitrary (i.e., not health-related) considerations.
It also demonstrates the problems with enacting a state law that creates a widely unlevel playing field for different types of establishments. Restaurants are trying to re-define themselves, within the language of the law, in such a way so that they need not comply with the smoke-free provisions of the law. This is a natural and expected consequence of applying the law unequally to different types of establishments, especially based on criteria that have nothing to do with health protection.
I reiterate what I said in my original post on this issue: If secondhand smoke is as serious a health hazard as public health advocates in Georgia allege, then there is no public health justification for supporting a law that provides protection to only a segment of the population, and that in choosing the segment to be protected, discriminates based on the age of the patrons visiting the establishment. If it is as hazardous as alleged, then ban smoking across the board - create a level playing field for all restaurants. If not, then stop creating such ridiculous impositions on restaurant owners where they are forced to change the nature of their establishments in order to be able to continue to allow smoking.
Tuesday, July 12, 2005
ANR Again Placing Politics Ahead of Science and Integrity
The Rest of the Story has been following the story of Americans for Nonsmokers' Rights' (ANR's) refusal to change its website's personal attack on the character of Associate Attorney General Robert McCallum, in which it states that McCallum is a "former tobacco industry lawyer" in an attempt to malign his character and rile up the public to accuse him of a purely political attempt to dismantle the Department of Justice's lawsuit against the tobacco companies.
As I have argued, the attack misleads the public into thinking that McCallum has previously represented tobacco companies, which appears to be false. While I think there is good reason to question and investigate the sudden change in DOJ's legal strategy and to investigate whether McCallum's involvement in the litigation represents a conflict of interest, I do not find it ethical for a public health organization to attempt to motivate the public to political action by misleading people, especially in a way that could potentially denigrate the character of an individual.
Were this a single incident in which ANR was putting its political goals ahead of accuracy and integrity, it might be overlooked. Unfortunately, however, ANR has a history of putting politics ahead of scientific integrity.
The Rest of the Story
In 1999, I (an ANR Board member at the time) authored a short article about how anti-smoking advocates should respond to scientific challenges to the conclusion that secondhand smoke causes disease. I provided a copy to ANR upon its request, with permission to send the article out to anti-smoking advocates.
Without my permission or knowledge, ANR posted the article on its website.
When I saw that the article had been published without my permission, I immediately asked ANR to make two small changes in the article that I desired in order to avoid the possibility of misleading the public about the character of two individuals who I mentioned in the article. I re-wrote a paragraph in the article to clarify that these two individuals (who had published an article suggesting that the claim of 400,000 deaths due to smoking each year was an overestimate) were not personally tied to the tobacco industry, but that the organizations with which they were affiliated had received tobacco industry funding. Each of those individuals had contacted me and expressed their concern over the possibility that my article could be misleading in this way.
I saw nothing wrong with clarifying the article to remove any possibility of misinterpretation, so I demanded that ANR immediately do so.
ANR refused. Despite having ignored my copyright in the first place by posting the article without my permission, ANR was now further disrespecting my copyright by refusing to allow me to change my own article.
I had numerous discussions with ANR about what possible harm could be done by making the article clearer. From my perspective, their main concern was that they didn't want to say anything remotely positive about anyone with any affiliation whatsoever with the tobacco industry, and that they viewed the clarification as possibly being construed as saying something positive about individuals who had some connection with the tobacco industry and therefore unacceptable, even though the clarification was "scientifically" appropriate and most importantly, even though the article was mine and mine only.
When that first request was denied, I then more formally demanded that ANR publish a complete retraction and apology to the affected individuals, since the possibility of simply clarifying my statement was not being made available to me. This request, too, was denied and once again my authorship rights were disrespected.
In explaining its reasons for denying my request, ANR wrote:
"we have concluded that the possible 'clarification' that you and I discussed is simply not feasible. There is a strong concensus that we do not want to post ANYTHING on our web page that can be construed as an apology or as backtracking from the position taken in the paper you wrote. More specifically, XXXXXX has convinced me that, given XXXXX's long history of attacking ETS science, it would be a mistake to state anything that would give him credence. ... I realize that your views on the matter are heart-felt and sincere, and that mere removal of your name from the paper, without more, will not be entirely satisfactory to you. But at this point ANR must put its political credibility ahead of what you consider to be your scientific credibility."
ANR then decided to completely disrespect my authorship rights and my copyright of the article, and to subsume copyright of the article for itself by publishing it on its website without my name. I never gave ANR permission to do this. What I told ANR clearly was that given its refusal to change my article as I re-wrote it, I wanted the article removed from its website. It was only when ANR refused to honor this author's request that I demanded that my name be removed from its website.
I learned some very important lessons from this episode, which until now, I have not wanted to share publicly. But now, in light of ANR's apparent placement of politics ahead of accuracy and integrity, I think it is an appropriate time to share what I learned.
I learned that I had been seriously misled by the very organization whose Board I sat on. I joined the Board thinking that I could be a valuable scientific advisor, sharing my scientific expertise on the health effects of secondhand smoke in order to guide the development and promotion of sound, science-based public health policy.
Instead, I learned that when it really came down to it, ANR was not interested in science and scientific integrity. It was above and beyond all interested in advancing its political objectives. And it would sacrifice anything - even one of its own Board members and his authorship rights and copyright - to do so.
Basically, ANR used me as a hack man to deliver what it wanted to be a personal attack on two individuals who had some affiliation with the tobacco industry. When I decided that these individuals' arguments had to be dealt with on scientific grounds rather than merely based on the fact that the organizations they were affiliated with had taken tobacco money, and that these individuals were not personally taking any money from the tobacco industry and therefore the article should not allow readers even the possibility of interpreting it as a malignment of their characters on that basis, I and ANR had to part ways.
I resigned from the ANR Board because I didn't want to be associated with an organization that put its own political agenda ahead of legitimate concerns for scientific integrity and which ignored basic legal rights of individuals, including its own Board members, in an all-out and self-righteous effort to disparage individuals who disagreed with its own position on the issues.
I simply didn't see the harm in clarifying my statement so that it could not possibly be misinterpreted by the public, and end up misleading them into thinking that these two authors had personally taken money from the tobacco companies. How can it possibly be wrong to tell (or to clarify) the truth?
Even if ANR was correct and it represented a mortal sin to clarify a statement about someone who argues on the opposite side of a scientific issue in order to avoid the possibility of misleading the public, that would not justify ignoring and disrespecting my authorship rights and copyright on four separate occasions.
And how could publishing a simple clarification of my own work be viewed by ANR as not being "feasible?" It was certainly technologically feasible. It would have taken a couple of seconds of the web master's time. It became clear that for ANR, obeying copyright law and respecting authorship rights was not "feasible" if it meant doing anything that weakened its political positioning.
I was concerned about my scientific integrity because I do not make personal attacks lightly and on a public website, I am going to be as clear as possible in doing so, so that I will not mislead anyone. I admit that I should have been clearer in the article in the first place, but we all make mistakes and one is not always as clear in one's writing as one would like. But when one sees that one can be clearer, what is wrong with doing so? I do that all the time, and have done so with virtually every one of the 56 or so published articles I have authored. It is certainly a legitimate concern for my own scientific integrity to want to be as clear as possible in what I publish and to vigorously edit my material before publication, or even during the publication process.
But ANR disrespected that concern and ignored the legal rights of its own Board member, all in the name of what ANR itself admitted was its overriding concern for its own "political credibility."
So politics trumps science, the law, and integrity in the anti-smoking movement, or at least within ANR. That's the lesson I learned from this episode.
I have no interest in being a hatchet man and I have no interest in being someone who takes pleasure from making personal attacks against individuals. I have no interest in playing political games and I have no interest in dispensing with science, the truth, and having some integrity and character in order to achieve political ends.
Since 1999, I have thought that perhaps this was just an isolated episode for ANR and that it didn't reflect the true character of the organization. However, seeing how ANR has handled its personal attack on the character of Robert McCallum and how it has refused to simply clarify its misleading public claim has convinced me that this was not an isolated episode. I'm afraid it really does characterize the nature of the organization.
And it's because of a concern for the dark cloud that this kind of organizational behavior casts upon all anti-smoking advocates that I'm coming forward with this story now.
I can only hope that things will change and that a respect for the law, legal rights, the truth as an end in itself, as well as a respect for individuals (especially those who are not working for the tobacco companies but who are writing or commenting based on their own sincerely-held views) and an overriding concern for the highest level of character and integrity will return to ANR and to the anti-smoking movement.
As I have argued, the attack misleads the public into thinking that McCallum has previously represented tobacco companies, which appears to be false. While I think there is good reason to question and investigate the sudden change in DOJ's legal strategy and to investigate whether McCallum's involvement in the litigation represents a conflict of interest, I do not find it ethical for a public health organization to attempt to motivate the public to political action by misleading people, especially in a way that could potentially denigrate the character of an individual.
Were this a single incident in which ANR was putting its political goals ahead of accuracy and integrity, it might be overlooked. Unfortunately, however, ANR has a history of putting politics ahead of scientific integrity.
The Rest of the Story
In 1999, I (an ANR Board member at the time) authored a short article about how anti-smoking advocates should respond to scientific challenges to the conclusion that secondhand smoke causes disease. I provided a copy to ANR upon its request, with permission to send the article out to anti-smoking advocates.
Without my permission or knowledge, ANR posted the article on its website.
When I saw that the article had been published without my permission, I immediately asked ANR to make two small changes in the article that I desired in order to avoid the possibility of misleading the public about the character of two individuals who I mentioned in the article. I re-wrote a paragraph in the article to clarify that these two individuals (who had published an article suggesting that the claim of 400,000 deaths due to smoking each year was an overestimate) were not personally tied to the tobacco industry, but that the organizations with which they were affiliated had received tobacco industry funding. Each of those individuals had contacted me and expressed their concern over the possibility that my article could be misleading in this way.
I saw nothing wrong with clarifying the article to remove any possibility of misinterpretation, so I demanded that ANR immediately do so.
ANR refused. Despite having ignored my copyright in the first place by posting the article without my permission, ANR was now further disrespecting my copyright by refusing to allow me to change my own article.
I had numerous discussions with ANR about what possible harm could be done by making the article clearer. From my perspective, their main concern was that they didn't want to say anything remotely positive about anyone with any affiliation whatsoever with the tobacco industry, and that they viewed the clarification as possibly being construed as saying something positive about individuals who had some connection with the tobacco industry and therefore unacceptable, even though the clarification was "scientifically" appropriate and most importantly, even though the article was mine and mine only.
When that first request was denied, I then more formally demanded that ANR publish a complete retraction and apology to the affected individuals, since the possibility of simply clarifying my statement was not being made available to me. This request, too, was denied and once again my authorship rights were disrespected.
In explaining its reasons for denying my request, ANR wrote:
"we have concluded that the possible 'clarification' that you and I discussed is simply not feasible. There is a strong concensus that we do not want to post ANYTHING on our web page that can be construed as an apology or as backtracking from the position taken in the paper you wrote. More specifically, XXXXXX has convinced me that, given XXXXX's long history of attacking ETS science, it would be a mistake to state anything that would give him credence. ... I realize that your views on the matter are heart-felt and sincere, and that mere removal of your name from the paper, without more, will not be entirely satisfactory to you. But at this point ANR must put its political credibility ahead of what you consider to be your scientific credibility."
ANR then decided to completely disrespect my authorship rights and my copyright of the article, and to subsume copyright of the article for itself by publishing it on its website without my name. I never gave ANR permission to do this. What I told ANR clearly was that given its refusal to change my article as I re-wrote it, I wanted the article removed from its website. It was only when ANR refused to honor this author's request that I demanded that my name be removed from its website.
I learned some very important lessons from this episode, which until now, I have not wanted to share publicly. But now, in light of ANR's apparent placement of politics ahead of accuracy and integrity, I think it is an appropriate time to share what I learned.
I learned that I had been seriously misled by the very organization whose Board I sat on. I joined the Board thinking that I could be a valuable scientific advisor, sharing my scientific expertise on the health effects of secondhand smoke in order to guide the development and promotion of sound, science-based public health policy.
Instead, I learned that when it really came down to it, ANR was not interested in science and scientific integrity. It was above and beyond all interested in advancing its political objectives. And it would sacrifice anything - even one of its own Board members and his authorship rights and copyright - to do so.
Basically, ANR used me as a hack man to deliver what it wanted to be a personal attack on two individuals who had some affiliation with the tobacco industry. When I decided that these individuals' arguments had to be dealt with on scientific grounds rather than merely based on the fact that the organizations they were affiliated with had taken tobacco money, and that these individuals were not personally taking any money from the tobacco industry and therefore the article should not allow readers even the possibility of interpreting it as a malignment of their characters on that basis, I and ANR had to part ways.
I resigned from the ANR Board because I didn't want to be associated with an organization that put its own political agenda ahead of legitimate concerns for scientific integrity and which ignored basic legal rights of individuals, including its own Board members, in an all-out and self-righteous effort to disparage individuals who disagreed with its own position on the issues.
I simply didn't see the harm in clarifying my statement so that it could not possibly be misinterpreted by the public, and end up misleading them into thinking that these two authors had personally taken money from the tobacco companies. How can it possibly be wrong to tell (or to clarify) the truth?
Even if ANR was correct and it represented a mortal sin to clarify a statement about someone who argues on the opposite side of a scientific issue in order to avoid the possibility of misleading the public, that would not justify ignoring and disrespecting my authorship rights and copyright on four separate occasions.
And how could publishing a simple clarification of my own work be viewed by ANR as not being "feasible?" It was certainly technologically feasible. It would have taken a couple of seconds of the web master's time. It became clear that for ANR, obeying copyright law and respecting authorship rights was not "feasible" if it meant doing anything that weakened its political positioning.
I was concerned about my scientific integrity because I do not make personal attacks lightly and on a public website, I am going to be as clear as possible in doing so, so that I will not mislead anyone. I admit that I should have been clearer in the article in the first place, but we all make mistakes and one is not always as clear in one's writing as one would like. But when one sees that one can be clearer, what is wrong with doing so? I do that all the time, and have done so with virtually every one of the 56 or so published articles I have authored. It is certainly a legitimate concern for my own scientific integrity to want to be as clear as possible in what I publish and to vigorously edit my material before publication, or even during the publication process.
But ANR disrespected that concern and ignored the legal rights of its own Board member, all in the name of what ANR itself admitted was its overriding concern for its own "political credibility."
So politics trumps science, the law, and integrity in the anti-smoking movement, or at least within ANR. That's the lesson I learned from this episode.
I have no interest in being a hatchet man and I have no interest in being someone who takes pleasure from making personal attacks against individuals. I have no interest in playing political games and I have no interest in dispensing with science, the truth, and having some integrity and character in order to achieve political ends.
Since 1999, I have thought that perhaps this was just an isolated episode for ANR and that it didn't reflect the true character of the organization. However, seeing how ANR has handled its personal attack on the character of Robert McCallum and how it has refused to simply clarify its misleading public claim has convinced me that this was not an isolated episode. I'm afraid it really does characterize the nature of the organization.
And it's because of a concern for the dark cloud that this kind of organizational behavior casts upon all anti-smoking advocates that I'm coming forward with this story now.
I can only hope that things will change and that a respect for the law, legal rights, the truth as an end in itself, as well as a respect for individuals (especially those who are not working for the tobacco companies but who are writing or commenting based on their own sincerely-held views) and an overriding concern for the highest level of character and integrity will return to ANR and to the anti-smoking movement.
Monday, July 11, 2005
Obesity Lawsuits Trying to Follow Tobacco Model
An online New York Times article yesterday discussed a number of lawsuits against fast food companies, in which the companies are charged with being "responsible for America's obesity crisis." One such suit, Pelman v. McDonald's, filed in 2002, accuses the restaurant chain of "making two teenage customers in New York fat and unhealthy." The personal injury claim in that suit (that the plaintiffs were harmed by eating McDonald's food) was thrown out by the trial judge, but a deceptive practices claim (that McDonald's falsely marketed its food as being of nutritional value) remains.
A number of states (20, according to the article) have passed laws that preclude citizens from suing the food industry, including restaurants, based on the claim that they caused an individual to develop obesity and/or its adverse health sequelae. However, such suits are still possible in the remaining states. Even in those states, though, obesity-related lawsuits may still be pursued, as state consumer protection laws may allow lawsuits based on the argument that fast food companies have deceptively marketed their products.
The Rest of the Story
I thought it was a big joke five years ago when The Onion ran a lead story the day after the Engle verdict (awarding $145 billion in punitive damages against tobacco companies for deceptively marketing their products and harming smokers) was announced; the story revealed that fast food companies had been assessed punitive damages of $145 billion for making their customers obese and causing obesity-related diseases.
But it turned out not to be a joke at all. Trial lawyers pounced on the opportunity and in 2002, there were at least two major personal injury lawsuits filed, hoping to hold fast food companies accountable for causing obesity and/or health damage among frequent customers. There actually was (and still is) a feeling out there that obesity lawsuits could follow the model of tobacco lawsuits and bring about change in fast food company behavior while reclaiming millions of dollars in damages for plaintiffs.
However, there are a number of major differences between tobacco companies and fast food companies and the nature of the products which they manufacture, market, and sell which I think make such obesity-related lawsuits groundless.
First, while cigarettes are inherently dangerous, there is nothing inherently damaging to health about eating a Big Mac. Cigarettes contain carcinogens and toxins that cause damage to one's health - immediately. There are measurable changes in the blood's ability to carry oxygen, in the ability of cilia in the lung to remove toxic substances from inhaled air, and in the excessive adhesion of platelets in the blood, that occur shortly after inhaling the smoke from just a single cigarette.
But the fat contained in a Big Mac is not only non-toxic, but it is essential to life. Without fat in the diet, we could not survive. And there is a certain proportion of calories from fat in the diet that is healthy. At a lower proportion of fat, we would actually not be as healthy.
Second, while cigarettes are unhealthy when used as directed, food from McDonalds or Burger King is not. Even if one smokes in a "responsible" manner, one cannot avoid having adverse health effects and health damage. Even light smokers have demonstrable impairment in health, including reduced exercise tolerance, decreased ability to exhale air from the lungs, increased levels of mutagenicity, and so on.
But one can eat fast food in a responsible (i.e., moderate) manner, such that it does not cause any health damage. Fat is not inherently harmful. It is only when eaten in excessive quantities that it is unhealthy.
Third, while cigarettes are addictive and are "manipulated" by cigarette companies to be addictive, fast food is not. Cigarette companies have technology available to eliminate the nicotine from their cigarettes, but choose not to. In fact, there is evidence that they have used a number of additives, including ammonia, to make their products more addictive.
But fat and fast food are not addictive. There is nothing I am aware of that is put into the product by fast food companies to make it addictive. There is nothing forcing someone who eats one Big Mac to eat another one, or to eat a Big Mac for every meal.
Fourth, while I think a reasonable argument can be made that cigarette smokers should not be held completely responsible for the damaging effects of tobacco products, since they are most often addicted to the product at a young age when they could not have made an informed decision about using the product, there is no reasonable legal argument that can be made for why a fast food restaurant should be held responsible for individuals who eat its products in excess.
As someone who has testified in at least seven tobacco cases on behalf of smokers, I probably tend to lean more on the side of holding companies responsible for damages caused by their products than on the side of holding individuals responsible for their behavior. Yet even I think that it is absurd to claim that individuals do not bear the responsibility for their decisions about what type of food to eat. I think it is an extreme argument, and an unreasonable one, to suggest that fast food restaurants are legally responsible for the poor dietary choices of individuals.
Although the basic idea of trying to hold fast food companies and the food industry legally accountable for the obesity epidemic makes no sense to me, there are public health groups that are trying to pursue such an approach. For example, the Public Health Advocacy Institute states that: "Tobacco litigation focused on the tobacco industry's behaviors that interfered with the consumer's ability to make a free and informed choice. As in tobacco, there is a similar concern with the food industry."
Even more troubling is the claim that: "it is unclear if some foods with added sugars and fat are addictive." This is precisely the kind of argument that the tobacco industry has made, and with some success, as a defense to charges that its own products are addictive. In fact, in the Engle case, I had to counter the tobacco industry's claim that foods, including high-fat or high-sugar foods, are addictive and I testified that such claims do little more than distract the public from the truly addictive drugs, such as cigarettes.
Even the legal claims based on the contention that fast food companies deceived consumers into thinking that their products were nutritious or healthy do not seem compelling to me. A Big Mac, french fries, and a milk shake after all, are a great source of calories and for some individuals, it is indeed a nutritious meal. Obviously, on a population-based level it does contribute to obesity to have these types of food being marketed. But it is not clear to me that individuals out there are mistakingly thinking that eating at McDonalds is going to be better for their health than eating at Fresh Choice. I think it is going to be difficult to convince a judge or jury that there is deceptive marketing going on that rises to the level of violating consumer protection laws.
The rest of the story suggests that obesity-related litigation, especially that which is based on personal injury claims, is ungrounded, and that the pursuit of this type of litigation may actually be detracting from the quite reasonable claims that are being made against tobacco companies. There is a perception out there that money-hungry attorneys are simply jumping on the bandwagon to try to extract large damage awards. Unfortunately, my perspective on the issues involved in these cases offers little to counter this perception. A Big Mac is simply not a Marlboro.
A number of states (20, according to the article) have passed laws that preclude citizens from suing the food industry, including restaurants, based on the claim that they caused an individual to develop obesity and/or its adverse health sequelae. However, such suits are still possible in the remaining states. Even in those states, though, obesity-related lawsuits may still be pursued, as state consumer protection laws may allow lawsuits based on the argument that fast food companies have deceptively marketed their products.
The Rest of the Story
I thought it was a big joke five years ago when The Onion ran a lead story the day after the Engle verdict (awarding $145 billion in punitive damages against tobacco companies for deceptively marketing their products and harming smokers) was announced; the story revealed that fast food companies had been assessed punitive damages of $145 billion for making their customers obese and causing obesity-related diseases.
But it turned out not to be a joke at all. Trial lawyers pounced on the opportunity and in 2002, there were at least two major personal injury lawsuits filed, hoping to hold fast food companies accountable for causing obesity and/or health damage among frequent customers. There actually was (and still is) a feeling out there that obesity lawsuits could follow the model of tobacco lawsuits and bring about change in fast food company behavior while reclaiming millions of dollars in damages for plaintiffs.
However, there are a number of major differences between tobacco companies and fast food companies and the nature of the products which they manufacture, market, and sell which I think make such obesity-related lawsuits groundless.
First, while cigarettes are inherently dangerous, there is nothing inherently damaging to health about eating a Big Mac. Cigarettes contain carcinogens and toxins that cause damage to one's health - immediately. There are measurable changes in the blood's ability to carry oxygen, in the ability of cilia in the lung to remove toxic substances from inhaled air, and in the excessive adhesion of platelets in the blood, that occur shortly after inhaling the smoke from just a single cigarette.
But the fat contained in a Big Mac is not only non-toxic, but it is essential to life. Without fat in the diet, we could not survive. And there is a certain proportion of calories from fat in the diet that is healthy. At a lower proportion of fat, we would actually not be as healthy.
Second, while cigarettes are unhealthy when used as directed, food from McDonalds or Burger King is not. Even if one smokes in a "responsible" manner, one cannot avoid having adverse health effects and health damage. Even light smokers have demonstrable impairment in health, including reduced exercise tolerance, decreased ability to exhale air from the lungs, increased levels of mutagenicity, and so on.
But one can eat fast food in a responsible (i.e., moderate) manner, such that it does not cause any health damage. Fat is not inherently harmful. It is only when eaten in excessive quantities that it is unhealthy.
Third, while cigarettes are addictive and are "manipulated" by cigarette companies to be addictive, fast food is not. Cigarette companies have technology available to eliminate the nicotine from their cigarettes, but choose not to. In fact, there is evidence that they have used a number of additives, including ammonia, to make their products more addictive.
But fat and fast food are not addictive. There is nothing I am aware of that is put into the product by fast food companies to make it addictive. There is nothing forcing someone who eats one Big Mac to eat another one, or to eat a Big Mac for every meal.
Fourth, while I think a reasonable argument can be made that cigarette smokers should not be held completely responsible for the damaging effects of tobacco products, since they are most often addicted to the product at a young age when they could not have made an informed decision about using the product, there is no reasonable legal argument that can be made for why a fast food restaurant should be held responsible for individuals who eat its products in excess.
As someone who has testified in at least seven tobacco cases on behalf of smokers, I probably tend to lean more on the side of holding companies responsible for damages caused by their products than on the side of holding individuals responsible for their behavior. Yet even I think that it is absurd to claim that individuals do not bear the responsibility for their decisions about what type of food to eat. I think it is an extreme argument, and an unreasonable one, to suggest that fast food restaurants are legally responsible for the poor dietary choices of individuals.
Although the basic idea of trying to hold fast food companies and the food industry legally accountable for the obesity epidemic makes no sense to me, there are public health groups that are trying to pursue such an approach. For example, the Public Health Advocacy Institute states that: "Tobacco litigation focused on the tobacco industry's behaviors that interfered with the consumer's ability to make a free and informed choice. As in tobacco, there is a similar concern with the food industry."
Even more troubling is the claim that: "it is unclear if some foods with added sugars and fat are addictive." This is precisely the kind of argument that the tobacco industry has made, and with some success, as a defense to charges that its own products are addictive. In fact, in the Engle case, I had to counter the tobacco industry's claim that foods, including high-fat or high-sugar foods, are addictive and I testified that such claims do little more than distract the public from the truly addictive drugs, such as cigarettes.
Even the legal claims based on the contention that fast food companies deceived consumers into thinking that their products were nutritious or healthy do not seem compelling to me. A Big Mac, french fries, and a milk shake after all, are a great source of calories and for some individuals, it is indeed a nutritious meal. Obviously, on a population-based level it does contribute to obesity to have these types of food being marketed. But it is not clear to me that individuals out there are mistakingly thinking that eating at McDonalds is going to be better for their health than eating at Fresh Choice. I think it is going to be difficult to convince a judge or jury that there is deceptive marketing going on that rises to the level of violating consumer protection laws.
The rest of the story suggests that obesity-related litigation, especially that which is based on personal injury claims, is ungrounded, and that the pursuit of this type of litigation may actually be detracting from the quite reasonable claims that are being made against tobacco companies. There is a perception out there that money-hungry attorneys are simply jumping on the bandwagon to try to extract large damage awards. Unfortunately, my perspective on the issues involved in these cases offers little to counter this perception. A Big Mac is simply not a Marlboro.
Thursday, July 07, 2005
Blogrolling on Tobacco Control and Public Health
In the few months since I initiated The Rest of the Story, I have become aware of a number of outstanding tobacco control and public health blogs, and I am starting to see how these blogs have now become an important communication tool in public health. Here is a brief review and index of the blogs I have become aware of. It is by no means comprehensive, but should give readers a sense of what is available out there.
Tobacco Control Blogs
Perhaps the premiere tobacco control blog is Gene Borio's Tobacco on Trial blog, which has eloquently and exquisitely chronicled the DOJ tobacco trial since Day 1. Gene Borio is also the genius behind the tobacco.org website, probably the top international website for tobacco control news.
I recently became aware of a number of excellent tobacco control blogs available through Globalink (they are called Blogalinks):
Ruben Israel's blog informs readers of the most important international tobacco control conferences and resources.
Cameron Norman's eTobacco Blog chronicles the eTobacco Project, "an initiative that explores ways to effectively use information technology to create knowledge networks within tobacco control." The blog "will chronicle some of the initiatives we undertake and serve as a very modest means of knowledge transfer to the tobacco control community."
Philippe Boucher's New Media and Tobacco Control blog provides a wide range of tobacco control news and resources, including a focus on blogging itself and weekly summaries of the most important tobacco control news stories.
Philippe Boucher also has an even more extensive and incredibly well-indexed tobacco control blog, in French.
Finally, Ruben Israel just initiated a blog for the 2006 World Conference on Tobacco or Health to be held in Washington, D.C. Information about the Conference will be posted there.
Public Health Blogs
Perhaps the premiere general public health blog is Revere's Effect Measure, modestly described by the editors as "a forum for progressive public health discussion and argument as well as a source of public health information from around the web." Effect Measure has been far more than that. Most recently, it has been one of the primary sources for public information on the potential threats of the bird flu and the urgent need for U.S. public health agencies to acknowledge and deal with this threat. Effect Measure has also treated its readers to an elegant presentation of the work of George Lakoff on framing and its implications for public health communication and practice.
Cervantes' Stayin' Alive is an outstanding public health policy blog that includes "Discussion of public health and health care policy, from a public health perspective. ... The economics, politics and sociology of health and illness in the U.S. will be examined from a critical perspective." The topics covered are wide-ranging and you never know what will be covered next, but it will be done in an incisive way, laced with dark humor.
Health Care Renewal is a health care policy blog, authored by a number of scientific and health care contributors, that addresses "threats to health care's core values, especially those stemming from concentration and abuse of power."
Impact Analysis is a more focused blog, but it deals with a wide-range of topics within the field of environmental health. Exquisite documentation and extensive links and resources make the site extremely valuable.
Confined Space is an occupational health blog, portraying workplace safety and health issues from a labor perspective, with just enough political analysis mixed in to make the blog informative yet piquant. It presents extensive coverage of occupational health news and even has its own mailing list.
Brooklyn Dodger combines both occupational and environmental health, presenting "research and other knowledge developments in occupational and public health and current events in politics related to public health, occupational health, and the environment." The posts are written from a scientific angle with extensive documentation from the environmental health literature.
The Genetics and Public Health Blog covers a wide range of topics within that area, including genetic engineering, genetic testing, genetically modified food, genetics and the law, and the genetics of disease.
The U.S. Food Policy blog covers "U.S. food policy and economics from a public interest perspective." The author, Tufts University food economist Parke Wilde, offers a huge index of food and nutrition blogs and websites.
The American Lung Association of Minnesota offers a blog that covers respiratory health issues, with a focus on tobacco control.
The editors of the American Journal of Bioethics offer a bioethics blog that aims to "cover as much of the world of bioethics as we can, identifying the most interesting stuff in, about, and relevant to bioethics, from newspapers, journals, magazines, books, etc."
The CDCer is a "community Weblog for CDC employees, families, friends, and a healthier world. Ladies, gentlemen, heros, cowards, and anyone interested in public health or science/technology are welcome to this part of the blogosphere."
Perhaps the newest public health blog is Healthmongers, a student-led public health blog that grew out of the Defining the Future of Public Health progressive student summit that was held at the Boston University School of Public Health in April of 2005. The goals of Healthmongers are to "contribute critically and constructively to the online discussion of public health and related political issues, provide news and perspective on different schools of public health with an eye to helping prospective students of public health choose a program that is a good fit for their interests, and to share resources to students of public health who are heading out into the workforce by identifying progressive public health employers."
Finally, Todd Seavey at the American Council on Science and Health edits FactsandFears, an important blog that emphasizes the need for public health policy and practice decisions to be based on sound scientific information.
I apologize about missing other tobacco control and public health blogs that are certainly out there, but I will add such sites to my links as I become aware of them.
Tobacco Control Blogs
Perhaps the premiere tobacco control blog is Gene Borio's Tobacco on Trial blog, which has eloquently and exquisitely chronicled the DOJ tobacco trial since Day 1. Gene Borio is also the genius behind the tobacco.org website, probably the top international website for tobacco control news.
I recently became aware of a number of excellent tobacco control blogs available through Globalink (they are called Blogalinks):
Ruben Israel's blog informs readers of the most important international tobacco control conferences and resources.
Cameron Norman's eTobacco Blog chronicles the eTobacco Project, "an initiative that explores ways to effectively use information technology to create knowledge networks within tobacco control." The blog "will chronicle some of the initiatives we undertake and serve as a very modest means of knowledge transfer to the tobacco control community."
Philippe Boucher's New Media and Tobacco Control blog provides a wide range of tobacco control news and resources, including a focus on blogging itself and weekly summaries of the most important tobacco control news stories.
Philippe Boucher also has an even more extensive and incredibly well-indexed tobacco control blog, in French.
Finally, Ruben Israel just initiated a blog for the 2006 World Conference on Tobacco or Health to be held in Washington, D.C. Information about the Conference will be posted there.
Public Health Blogs
Perhaps the premiere general public health blog is Revere's Effect Measure, modestly described by the editors as "a forum for progressive public health discussion and argument as well as a source of public health information from around the web." Effect Measure has been far more than that. Most recently, it has been one of the primary sources for public information on the potential threats of the bird flu and the urgent need for U.S. public health agencies to acknowledge and deal with this threat. Effect Measure has also treated its readers to an elegant presentation of the work of George Lakoff on framing and its implications for public health communication and practice.
Cervantes' Stayin' Alive is an outstanding public health policy blog that includes "Discussion of public health and health care policy, from a public health perspective. ... The economics, politics and sociology of health and illness in the U.S. will be examined from a critical perspective." The topics covered are wide-ranging and you never know what will be covered next, but it will be done in an incisive way, laced with dark humor.
Health Care Renewal is a health care policy blog, authored by a number of scientific and health care contributors, that addresses "threats to health care's core values, especially those stemming from concentration and abuse of power."
Impact Analysis is a more focused blog, but it deals with a wide-range of topics within the field of environmental health. Exquisite documentation and extensive links and resources make the site extremely valuable.
Confined Space is an occupational health blog, portraying workplace safety and health issues from a labor perspective, with just enough political analysis mixed in to make the blog informative yet piquant. It presents extensive coverage of occupational health news and even has its own mailing list.
Brooklyn Dodger combines both occupational and environmental health, presenting "research and other knowledge developments in occupational and public health and current events in politics related to public health, occupational health, and the environment." The posts are written from a scientific angle with extensive documentation from the environmental health literature.
The Genetics and Public Health Blog covers a wide range of topics within that area, including genetic engineering, genetic testing, genetically modified food, genetics and the law, and the genetics of disease.
The U.S. Food Policy blog covers "U.S. food policy and economics from a public interest perspective." The author, Tufts University food economist Parke Wilde, offers a huge index of food and nutrition blogs and websites.
The American Lung Association of Minnesota offers a blog that covers respiratory health issues, with a focus on tobacco control.
The editors of the American Journal of Bioethics offer a bioethics blog that aims to "cover as much of the world of bioethics as we can, identifying the most interesting stuff in, about, and relevant to bioethics, from newspapers, journals, magazines, books, etc."
The CDCer is a "community Weblog for CDC employees, families, friends, and a healthier world. Ladies, gentlemen, heros, cowards, and anyone interested in public health or science/technology are welcome to this part of the blogosphere."
Perhaps the newest public health blog is Healthmongers, a student-led public health blog that grew out of the Defining the Future of Public Health progressive student summit that was held at the Boston University School of Public Health in April of 2005. The goals of Healthmongers are to "contribute critically and constructively to the online discussion of public health and related political issues, provide news and perspective on different schools of public health with an eye to helping prospective students of public health choose a program that is a good fit for their interests, and to share resources to students of public health who are heading out into the workforce by identifying progressive public health employers."
Finally, Todd Seavey at the American Council on Science and Health edits FactsandFears, an important blog that emphasizes the need for public health policy and practice decisions to be based on sound scientific information.
I apologize about missing other tobacco control and public health blogs that are certainly out there, but I will add such sites to my links as I become aware of them.
Wednesday, July 06, 2005
Montgomery County Considering Hiring Only Nonsmokers
According to an article in yesterday's Bucks County Courier Times, Montgomery County (Pennsylvania) is considering hiring only nonsmokers in an effort to reduce its health care costs for its employees. The chair of the County Commission, who proposed the idea, stated that the county could save an estimated $25 to $50 million over the next 25 years on health insurance expenses.
The Rest of the Story
While I could understand a policy of not hiring smokers if the smoking was directly related to job performance or to the mission of the employer, neither is the case here. The proposed policy is simply designed to save money on health care costs. I find this extremely problematic and troubling.
Policies such as this one threaten to create a second class of citizens - smokers - who have highly limited access to employment opportunities. Is this really what we want to be doing? Smokers already tend to enjoy lower levels of income and if these policies were widely implemented, their incomes and opportunities would sink lower and eventually they would become second class citizens.
Not only is this policy in conflict with the most basic goal of public health - social justice - but it also represents a very dangerous slippery slope. After all, there are a number of other effective ways Montgomery County could save money from health care expenses:
Tobacco control practitioners should be particularly alarmed at this emerging trend, because I view it as being in direct conflict with the principles of the public health practice of tobacco control. Smokers should be viewed as the primary population that we are trying to serve, not as the villains who need to be relegated to second class status so that the rest of society can enjoy economic benefits.
The Rest of the Story
While I could understand a policy of not hiring smokers if the smoking was directly related to job performance or to the mission of the employer, neither is the case here. The proposed policy is simply designed to save money on health care costs. I find this extremely problematic and troubling.
Policies such as this one threaten to create a second class of citizens - smokers - who have highly limited access to employment opportunities. Is this really what we want to be doing? Smokers already tend to enjoy lower levels of income and if these policies were widely implemented, their incomes and opportunities would sink lower and eventually they would become second class citizens.
Not only is this policy in conflict with the most basic goal of public health - social justice - but it also represents a very dangerous slippery slope. After all, there are a number of other effective ways Montgomery County could save money from health care expenses:
- it could refuse to hire obese persons, who we know have far greater morbidity and therefore require much higher health care expenditures;
- it could refuse to hire people whose cholesterol levels are greater than 200, which is a well-documented risk factor for heart disease, the nation's leading cause of morbidity;
- it could refuse to hire people who eat more than 6 grams of salt a day; this is a major cause of high blood pressure and is associated with heart disease and strokes.
Tobacco control practitioners should be particularly alarmed at this emerging trend, because I view it as being in direct conflict with the principles of the public health practice of tobacco control. Smokers should be viewed as the primary population that we are trying to serve, not as the villains who need to be relegated to second class status so that the rest of society can enjoy economic benefits.
Tuesday, July 05, 2005
Americans for Nonsmokers' Rights Apparently Decides to Retain Misleading Website Information
After having been made aware of a misleading and potentially very serious and damaging personal attack on its web site, Americans for Nonsmokers' Rights (ANR) has apparently decided to retain the misleading communication and not to clarify it. My reason for inferring that such a decision has been made is that the misleading charge remains on its web site as of this morning, a full two weeks after the accusation was first made and ANR was made aware of its potentially misleading nature.
The attack is on Associate Attorney General Robert McCallum who is now directing the Department of Justice's lawsuit against the tobacco companies. ANR has informed the public that McCallum is "a former tobacco industry lawyer."
However, my research as well as the best available information seems to reveal that McCallum has never represented any tobacco company. The Department of Justice has issued a statement which I interpret as denying that McCallum ever represented a tobacco client.
ANR has defended its statement by claiming that since McCallum was a partner at a law firm that represented R.J. Reynolds, he becomes a tobacco industry lawyer automatically because he presumably received income from that case, although he did not participate in it.
The Rest of the Story
While I find ANR's interpretation of the term "tobacco industry lawyer" to be overly broad, its response and its failure to clarify the statement demonstrate that it is missing my underlying concern: that it is unethical for a public health organization to mislead the public in order to stir them to political action, especially when the misleading statement impugns the character of an individual.
So it hardly matters whether a partner in a law firm is an attorney for any company that does business with that law firm regardless of whether she represents the firm herself. What matters is whether the public is likely to interpret ANR's attack to mean that McCallum has previously represented the tobacco industry and is now litigating against the industry.
If the public interprets the charge this way, then it is being seriously misled, and in a way that seriously denigrates McCallum's character. Such an action would represent an egregious violation of standards of ethical conduct for attorneys and it would permanently mar McCallum's public image and perhaps his professional image as well.
On the other hand, if McCallum was simply a partner at a law firm that represented R.J. Reynolds in patent issues that he had nothing to do with directly, then the issue of a conflict of interest becomes more complex and if there is an ethical violation, it is far less serious and will likely have far less of a damaging impact on McCallum's public and professional image.
Note that I am not arguing here the issue of whether McCallum's involvement in the DOJ case represents a conflict of interest. It may very well. I am simply arguing that in an effort to publicly malign McCallum, it is inappropriate for ANR to mislead the public into thinking that he has represented the tobacco industry previously, and is therefore committing one of the most blatant, obvious, and egregious ethical violations possible for an attorney.
ANR is entitled to malign McCallum using the facts and using tactics that will give the public a proper understanding of who he is. And there is nothing stopping ANR from putting in a simple clarification that would avoid any possibility of misinterpretation of the facts.
But the apparent decision by ANR to retain what I think is clearly a misleading statement, invoked as part of a public attack on the character of an individual, is a serious ethical problem.
The attack is on Associate Attorney General Robert McCallum who is now directing the Department of Justice's lawsuit against the tobacco companies. ANR has informed the public that McCallum is "a former tobacco industry lawyer."
However, my research as well as the best available information seems to reveal that McCallum has never represented any tobacco company. The Department of Justice has issued a statement which I interpret as denying that McCallum ever represented a tobacco client.
ANR has defended its statement by claiming that since McCallum was a partner at a law firm that represented R.J. Reynolds, he becomes a tobacco industry lawyer automatically because he presumably received income from that case, although he did not participate in it.
The Rest of the Story
While I find ANR's interpretation of the term "tobacco industry lawyer" to be overly broad, its response and its failure to clarify the statement demonstrate that it is missing my underlying concern: that it is unethical for a public health organization to mislead the public in order to stir them to political action, especially when the misleading statement impugns the character of an individual.
So it hardly matters whether a partner in a law firm is an attorney for any company that does business with that law firm regardless of whether she represents the firm herself. What matters is whether the public is likely to interpret ANR's attack to mean that McCallum has previously represented the tobacco industry and is now litigating against the industry.
If the public interprets the charge this way, then it is being seriously misled, and in a way that seriously denigrates McCallum's character. Such an action would represent an egregious violation of standards of ethical conduct for attorneys and it would permanently mar McCallum's public image and perhaps his professional image as well.
On the other hand, if McCallum was simply a partner at a law firm that represented R.J. Reynolds in patent issues that he had nothing to do with directly, then the issue of a conflict of interest becomes more complex and if there is an ethical violation, it is far less serious and will likely have far less of a damaging impact on McCallum's public and professional image.
Note that I am not arguing here the issue of whether McCallum's involvement in the DOJ case represents a conflict of interest. It may very well. I am simply arguing that in an effort to publicly malign McCallum, it is inappropriate for ANR to mislead the public into thinking that he has represented the tobacco industry previously, and is therefore committing one of the most blatant, obvious, and egregious ethical violations possible for an attorney.
ANR is entitled to malign McCallum using the facts and using tactics that will give the public a proper understanding of who he is. And there is nothing stopping ANR from putting in a simple clarification that would avoid any possibility of misinterpretation of the facts.
But the apparent decision by ANR to retain what I think is clearly a misleading statement, invoked as part of a public attack on the character of an individual, is a serious ethical problem.
Some Anti-Smoking Advocates Viewing Ethics (and this Blog) as a Distraction to their Work
The Rest of the Story, its author, and the serious ethical concerns that it has expressed about the tactics being used by many anti-smoking organizations are apparently being viewed as a distraction to the important work being done by anti-smoking advocates and organizations.
I have received a number of comments from anti-smoking advocates protesting my recent posts and calling them a distraction to the movement, but this personal comment was perhaps the most telling:
"This is really getting old. There are so many really important substantial issues we could be talking about and actions we could be considering, if we were not mired down addressing Michael's BLOG editorial comments critical of our allies in the tobacco control community. ... We are being diverted away from our right and proper focus."
The Rest of the Story
I am sorry that ethical concerns are apparently viewed by some as a distraction and diversion from the important substantial issues of the anti-smoking movement.
And I'm sorry that this blog is apparently hindering public health practitioners from talking about and taking action on such issues.
Actually, one of my purposes in creating this tobacco control blog was to stimulate discussion on issues that I feel are most substantial and most important in the movement. And right now, I can think of nothing that takes precedence in its importance over the way in which tobacco control practitioners practice public health, especially the responsibility to conduct their practices ethically.
The ethical practice of tobacco control and public health is in fact our right and proper focus.
It is perhaps fitting that the lead editorial in this month's American Journal of Public Health is entitled: "The Challenges and Opportunities of Ethics" (see: Dickens BM. The Challenges and Opportunities of Ethics. Am J Public Health 2005; 95:1094).
The editorial emphasizes "the responsibility of public health practitioners and scientists to conduct their practices ethically."
Specifically, the editorial suggests that the kind of ethical concerns that apply to individual research with human subjects should also apply at the collective level, and not only to research, but to the very practice of public health. Because of this assertion, I view this as an important piece in the public health literature.
It is easy to see why it would be unethical to mislead an individual subject in a public health intervention about the reasons for such an intervention. But perhaps it is not as easy to see why it might also be considered unethical for a public health organization to mislead a community of individuals (e.g., the public) about the underlying facts regarding the development of a public health policy proposal, or about the facts regarding certain individuals who are involved in public health policy debates.
But the principle of informed consent, if viewed to apply to communities as well as individuals, dictates that the same level of care and scrutiny that is given to communications to individual human subjects also be given to public communications that are attempting to influence the public's perception of an individual or of a public policy debate, and especially if those communications are designed to stir the public to political action.
My previous discussion of APHA's code of ethical practice discusses the "community-level" equivalent of the individual-level ethical principle of informed consent.
Rather than being a distraction to the public health practice of tobacco control, I view the issues being raised in The Rest of the Story as being the "right and proper focus" of tobacco control and public health practice.
I have received a number of comments from anti-smoking advocates protesting my recent posts and calling them a distraction to the movement, but this personal comment was perhaps the most telling:
"This is really getting old. There are so many really important substantial issues we could be talking about and actions we could be considering, if we were not mired down addressing Michael's BLOG editorial comments critical of our allies in the tobacco control community. ... We are being diverted away from our right and proper focus."
The Rest of the Story
I am sorry that ethical concerns are apparently viewed by some as a distraction and diversion from the important substantial issues of the anti-smoking movement.
And I'm sorry that this blog is apparently hindering public health practitioners from talking about and taking action on such issues.
Actually, one of my purposes in creating this tobacco control blog was to stimulate discussion on issues that I feel are most substantial and most important in the movement. And right now, I can think of nothing that takes precedence in its importance over the way in which tobacco control practitioners practice public health, especially the responsibility to conduct their practices ethically.
The ethical practice of tobacco control and public health is in fact our right and proper focus.
It is perhaps fitting that the lead editorial in this month's American Journal of Public Health is entitled: "The Challenges and Opportunities of Ethics" (see: Dickens BM. The Challenges and Opportunities of Ethics. Am J Public Health 2005; 95:1094).
The editorial emphasizes "the responsibility of public health practitioners and scientists to conduct their practices ethically."
Specifically, the editorial suggests that the kind of ethical concerns that apply to individual research with human subjects should also apply at the collective level, and not only to research, but to the very practice of public health. Because of this assertion, I view this as an important piece in the public health literature.
It is easy to see why it would be unethical to mislead an individual subject in a public health intervention about the reasons for such an intervention. But perhaps it is not as easy to see why it might also be considered unethical for a public health organization to mislead a community of individuals (e.g., the public) about the underlying facts regarding the development of a public health policy proposal, or about the facts regarding certain individuals who are involved in public health policy debates.
But the principle of informed consent, if viewed to apply to communities as well as individuals, dictates that the same level of care and scrutiny that is given to communications to individual human subjects also be given to public communications that are attempting to influence the public's perception of an individual or of a public policy debate, and especially if those communications are designed to stir the public to political action.
My previous discussion of APHA's code of ethical practice discusses the "community-level" equivalent of the individual-level ethical principle of informed consent.
Rather than being a distraction to the public health practice of tobacco control, I view the issues being raised in The Rest of the Story as being the "right and proper focus" of tobacco control and public health practice.
Saturday, July 02, 2005
University of Tennessee Professor Receives Grant to Study Promising Lung Cancer Treatment
A professor at the University of Tennessee Health Science Center has been awarded a $744,765 three-year grant to study a potential new treatment for lung cancer. The professor, Susan E. Senogles, an associate professor of molecular sciences, will use the grant to study whether lung cancer cells can be attacked through dopamine receptors on their surfaces.
Small cell lung cancer cells are known to have dopamine receptors on their surfaces and if these receptors can be selectively targeted, it may be possible to develop treatments for lung cancer that are effective but much less toxic than current chemotherapeutic agents. Professor Senogles has already shown that this method of targeting dopamine receptors is effective in slowing the growth of pituitary tumor cells.
The Rest of the Story
If this research is successful, it will not only advance lung cancer treatment but it will also bring tremendous good will, great publicity, and public respect for the organization that is funding this work. Likely, this improved public image will translate into an increase in sales of the funding company's products.
The company is Philip Morris, and its products are cigarettes.
The University of Tennessee Health Science Center has accepted funding from Philip Morris to study a potential treatment for cancer caused by products made by the funding agency.
The problem is that by accepting this funding, the University is helping Philip Morris to achieve a critical public relations (and therefore - marketing) function: to improve its public image, enhance its public perception as a socially responsible company, and ultimately, to sell more cigarettes. In turn, this will cause more lung cancer which can then be treated by this new therapy.
In other words, the University of Tennessee Health Science Center has now become a pawn in the tobacco industry's public relations game.
Arguably, the Health Science Center's involvement in tobacco company marketing activities is in conflict with its primary mission, which is "to improve human health-through education, research, and public service."
While the University of Tennessee may see this as public service because it may improve lung cancer treatment, it is actually more substantially serving the interests of Philip Morris because it is advancing a critical tobacco company public relations and marketing objective.
The rest of the story reveals that in the name of supporting its own research, the University of Tennessee Health Science Center has compromised its very mission by becoming a partner in the Philip Morris public relations campaign. One has to question how this health institution defines public service.
Small cell lung cancer cells are known to have dopamine receptors on their surfaces and if these receptors can be selectively targeted, it may be possible to develop treatments for lung cancer that are effective but much less toxic than current chemotherapeutic agents. Professor Senogles has already shown that this method of targeting dopamine receptors is effective in slowing the growth of pituitary tumor cells.
The Rest of the Story
If this research is successful, it will not only advance lung cancer treatment but it will also bring tremendous good will, great publicity, and public respect for the organization that is funding this work. Likely, this improved public image will translate into an increase in sales of the funding company's products.
The company is Philip Morris, and its products are cigarettes.
The University of Tennessee Health Science Center has accepted funding from Philip Morris to study a potential treatment for cancer caused by products made by the funding agency.
The problem is that by accepting this funding, the University is helping Philip Morris to achieve a critical public relations (and therefore - marketing) function: to improve its public image, enhance its public perception as a socially responsible company, and ultimately, to sell more cigarettes. In turn, this will cause more lung cancer which can then be treated by this new therapy.
In other words, the University of Tennessee Health Science Center has now become a pawn in the tobacco industry's public relations game.
Arguably, the Health Science Center's involvement in tobacco company marketing activities is in conflict with its primary mission, which is "to improve human health-through education, research, and public service."
While the University of Tennessee may see this as public service because it may improve lung cancer treatment, it is actually more substantially serving the interests of Philip Morris because it is advancing a critical tobacco company public relations and marketing objective.
The rest of the story reveals that in the name of supporting its own research, the University of Tennessee Health Science Center has compromised its very mission by becoming a partner in the Philip Morris public relations campaign. One has to question how this health institution defines public service.
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.
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."
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."
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
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.
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);
- 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 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.
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