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

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

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

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

The Rest of the Story

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

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

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

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