Tuesday, June 21, 2005

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

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

The Rest of the Story

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

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

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

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