Thursday, June 30, 2005

Public Health Groups Seek to Intervene in DOJ Case

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

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

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

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

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

The Rest of the Story

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

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

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

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

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

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