Friday, July 29, 2005

An Insider's Take on the DOJ Tobacco Trial: Don't Be Hasty in Accusations of Political Interference

Kenneth N. Bass, an attorney who formerly represented Brown & Williamson in the DOJ tobacco lawsuit but has subsequently left that case and the practice of Kirkland & Ellis, offers an insider's view of the events that occurred during the final days of the tobacco trial in a July 25 article published in the Legal Times Online.

The premise of Bass' opinion regarding the sudden change in the smoking cessation remedy from $130 billion to $10 billion is that "anti-tobacco activists, newspaper ediotrialists, and leading Democratic Party figures have called for an investigation into the DOJ's actions, and the DOJ inspector general has reportedly begun looking into the matter. Unfortunately, those same press reports ignored key facts that suggest a far more benign explanation for the DOJ's actions."

The most important of these facts is that "this new remedy (the $130 billion smoking cessation program) was practically dead on arrival...In Order No. 886, entered on Feb. 28, a clearly frustrated Judge Kessler wrote that while it would be 'premature' to rule out any of the government's nondisgorgement remedies, she was concerned that most of them read as if the appeals court had 'never written' its intervening decision. ... Yet the government went forward. The court repeatedly asked during the remedies phase, and then again in closing arguments, how the government could square the cessation program with the appellate ruling, but no one had a satisfactory answer."

According to Bass, then, the most plausible explanation for the government's change in course and for the intervention of senior DOJ officials, is that the request for the $130 billion remedy was a "train wreck" with no chance of being ordered or upheld, that the trial team lawyers wanted to stick to the $130 billion, and that senior officials therefore intervened to give the remedy at least a shot and insisted that the backwards-looking remedy be re-fashioned as a less expensive but more carefully tailored forwards-looking remedy.

Bass further argues that those lawyers who were not involved in the day-to-day court activities and were not so heavily vested in the weak testimony that supported the $130 billion remedy might have been in a better position to see the widest and most clear perspective on the case. If anything, Bass asks, why did it take so long for senior officials to intervene?

Finally, Bass argues that the changes requested in the expert testimony of two witnesses - Matthew Myers and Dr. Max Bazerman - were not the result of political intererence to protect the tobacco industry, but rather, were due to a concern that the Department not "embarrass" itself by having Myers' testimony, which Judge Kessler apparently called a "political speech," thrown out and to protect against Bazerman's testimony, which Kessler called "troubling on many grounds," from also being thrown out.

The Rest of the Story

To those who have been reading The Rest of the Story during the past seven weeks, Bass' arguments may sound familiar. That's because his impression of the case, from the inside, is exactly the same as my impression, from the outside.

In a June 10 post, entitled "IN MY VIEW: Don't Be Hasty in Accusations of Political Interference in DOJ Case," I wrote:

"Accusing the Administration and high-ranking DOJ officials of political interference certainly makes a nice story, but I think anti-smoking groups should be careful before jumping to conclusions about the reasons for the DOJ's reduction from $130 billion to $10 billion in the amount requested for a national smoking cessation program it proposes as a remedy should it prevail in the RICO-based lawsuit against the tobacco companies. ...

First, there is as yet no evidence that political interference indeed was the reason for the abrupt change in legal strategy. I think we in public health need to be more careful and to have better documentation before we make the kind of definitive accusatory statements that some anti-smoking groups have made. ...

Second, it makes no sense for the Administration or senior DOJ officials to intervene on behalf of the tobacco companies by demanding that the lawyers prosecuting the case present a more narrowly tailored remedy that has a greater chance of passing muster with the D.C. Court of Appeals. If anything, the Administration and senior DOJ officials could have hurt the case the most by allowing the statutorily unjustified request (at least in the view of the appellate court) to stand. ...

Asking for a $130 billion program to treat existing smokers in light of an appellate court decision that a RICO remedy has to be "forward-looking" is guaranteed to produce as a result a $0 billion program. Can it not be said that a program to treat existing smokers "is a quintessentially backward looking remedy focused on remedying the effects of past conduct to restore the status quo?" This is the exact language of the D.C. Court of Appeals decision against allowing disgorgement as a remedy. Under these constraints, a program to provide cessation services for existing smokers simply has no chance of prevailing, even if Judge Kessler were to ignore the appellate court ruling and issue such an order. ...

Now, before readers ask the question, let me address the clear evidence that the decision to change the requested remedy was thrust upon the trial lawyers from above. That seems clear. But that doesn't imply that it was a politically-motivated decision. It still could well have been a strategic decision, one based on an upper-level judgment that a remedy that is more consistent with the D.C. Court of Appeals' decision has a better chance of being upheld. Again, being familiar with the legal issues in the case, it just doesn't make sense for the Administration to intervene in this way as a means of "protecting" the tobacco companies from financial harm. The D.C. Court of Appeals has already done that."

Bass' comments are in particular accord with those made by a blogging commentator named "tobacco observer" in response to Gene Borio's post about the DOJ case events: "Now I agree that it is actually quite probable that someone higher up in the DOJ mandated this last minute change. But that’s probably because someone higher up and less close to the case could see the obvious. . .that the $130 billion request was absurd, has nothing whatever to do with RICO violations, and is exactly the same kind of thing that the DCCA said wasn’t allowed. Whomever made the decision probably realized that there was going to be no settlement negotiations, and was sick-and-tired of watching the gov’t get slapped around every single day in the courtroom on impermissible remedies, so they mandated this change as a tactical one (not a political one)."

None of this, by the way, means that Kenneth Bass, "tobacco observer," or I am right. It is still possible, and I am not ruling out the possibility that the decision was based purely on a political desire to protect the tobacco companies from financial harm. But I really don't think so. At very least, I do not see grounds to justify the vigorous definitive accusations of political interference and wrongdoing by a number of anti-smoking groups.

When I issued my initial opinion on this matter, I myself was roundly criticized and attacked by some very prominent members of the anti-smoking movement. In fact, I was called a "discredit" to the tobacco control movement, was attacked as having gone off the deep end, and was asked to take a 3-month hiatus from my writing on this issue. The attacks forced me to leave an anti-smoking list-serve that I had been a significant contributor to for the past four or five years.

But when all is said and done, the rest of the story suggests that at the present time, there is every bit as much reason to believe that the decision by DOJ's senior officials to force the trial team to re-fashion the smoking cessation remedy was a strategic one as there is to believe that it was a political one, and probably a whole lot more.

Thursday, July 28, 2005

Citizens' Commission Asks Judge Kessler for Inquisition into Remedy Change; Again Fails to Disclose Conflict of Interest

The Citizens' Commission to Protect the Truth has asked Judge Kessler to conduct an inquisition into the reasons for the Department of Justice's decision to reduce its requested remedy for a national smoking cessation program from $130 billion to $10 billion.

The Commission's letter to the judge suggests that political interference by Bush administration political appointees in the DOJ may have been the reason for the change in requested remedy, and that the purpose for the change was to protect the interests of the tobacco industry. The letter cites as a motive for this interference the fact that Associate Attorney General was previously a partner for a law firm that represented R.J. Reynolds and the fact that the tobacco industry has contributed large amounts of money to the Republican party.

According to the letter: "During closing arguments last week, attorneys for the Justice Department abandoned the expert testimony that they had presented to support forward-looking relief to fund national public education, smoking-prevention and smoking-cessation efforts. That testimony had indicated that $130 billion over 25 years would be required to mount effective efforts; at the last minute, Justice Department lawyers reduced the amount requested to $10 billion over 5 years and abandoned their earlier demand that the tobacco companies fund programs to help 45 million current smokers quit."

"It appears that these decisions were transmitted to the litigating attorneys by Robert McCallum, a political appointee who supervises the Civil Division and who ordered the attorneys to abandon their expert testimony in the case. Mr. McCallum came to his post from Alston & Bird, a law firm that has represented R.J. Reynolds, a defendant in this case. Moreover, the tobacco industry--led by co-defendants Philip Morris/Altria, R.J. Reynolds, and Lorillard-- contributed more than $2.7 million in 2004 alone to the Republican party."

The Rest of the Story

There's just one problem with this request to Judge Kessler.

It's called a conflict of interest, and it's to the tune of no less than $1.5 million.

The Citizens' Commission to Protect the Truth has a clear conflict of interest in seeking to intervene in the DOJ case because it is heavily funded by the American Legacy Foundation, an organization that stands to gain perhaps billions of dollars, depending on the remedies that are requested by the DOJ lawyers.

The Commission, which admits on its web site that "Principal funding for The Commission comes from the National Association of Attorneys General through a $1.5 million pass-through grant from the American Legacy Foundation," did not see fit to disclose its conflict of interest to Judge Kessler.

The Commission's letter to her fails to mention this small detail. Interesting: the letter emphasizes the $2.7 million that the Republican party received from the tobacco companies, but failed to reveal the $1.5 million that the Commission received from the American Legacy Foundation.

The remedies that the DOJ has already proposed should it prevail in its RICO lawsuit against the tobacco companies include a request for $2 billion for the American Legacy Foundation to run an anti-smoking media campaign. The Department also requested $10 billion for a national smoking cessation program that includes a media campaign, and it is at least possible that the Legacy Foundation stands to see a part of that money as well. And if the program is expanded to $130 billion, then the amount of money that Legacy could see is substantially higher.

Being on the dole from the American Legacy Foundation, it is clear that the Citizens' Commission itself stands to potentially reap in a huge pot of money should the DOJ prevail in the case and especially if the requested remedies call for larger amounts of money to go to the Legacy Foundation.

So I see a clear conflict of interest in the Citizens' Commission intervening in this case.

Am I suggesting that it was inappropriate for the Commission to submit this letter to Judge Kessler requesting an inquisition? No. But I am suggesting that it was the Commission's ethical and legal responsibility to disclose its potential conflict of interest to the Judge.

As I have already reported, the Commission failed to disclose this same conflict in its amicus brief which it filed back in February.

So this now marks two formal interventions into the case in which the Commission has failed to disclose its conflict of interest. It appears that Judge Kessler may not be aware that the Commission is actually just a front group for the American Legacy Foundation (or, to take my own interpretation of the situation out -- that the Commission recieves funding from the Legacy Foundation). I suspect that if she became aware of this, she would be none too pleased.

That the Justice Department provided a reasonable alternative explanation for the reduction in the proposed remedy (changing it from a backwards-looking and therefore impermissible remedy to a forwards-looking and therefore potentially permissible one), that McCallum does not have a clear conflict of interest or any clear ethical conflict, and that the fact that the Republican party received money from the tobacco companies proves nothing only go to question the merit of the substance of the Commission's request, especially since it is extremely intrusive and far less intrusive measures could (and are) being taken to investigate the situation.

But the rest of the story is not about the merits of the Citizens' Commission's request - it's about the very ethics of making such a request when its major funder - the American Legacy Foundation - stands to gain billions of dollars based on the requested remedies in the case, and yet the Commission has failed to disclose this blatant conflict of interest to a federal judge, as well as to the attorneys who have a right to know this critical missing piece of information.

More on McCallum and Conflict of Interest: If Anyone has a Grievance, It's R.J. Reynolds

A number of anti-smoking groups have accused Associate Attorney General Robert McCallum of a conflict of interest in becoming involved in the DOJ's lawsuit against the tobacco companies after having served as a partner for a law firm that did patent work for R.J. Reynolds. In my analysis of this potential conflict of interest, I concluded that the issue is far more complex than these groups have made it out to be and that it is premature to be making such a claim.

What few people may realize is that in this situation, the primary concern about a potential conflict of interest is that McCallum may have become aware of confidences of R.J. Reynolds that could potentially aid the opposing party (the DOJ) in its litigation against the tobacco company. So in fact, if there is a grievance based on this type of conflict of interest, it is R.J. Reynolds who would have the legitimate complaint.

The conflict of interest rules relating to representation of a party in a matter related to that affecting a former client are primarily designed to prevent the former client from harm due to the attorney being able to use confidential information to aid the lawsuit against the former client.

The District of Columbia Rules of Professional Conduct related to conflict of interest based on a former client state that: "A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation." (Rule 1.9 - Conflict of Interest: Former Client)

So the concern here is that the lawyer's participation in the case may be unfair to the former client, not that the lawyer will somehow harm his current client by virtue of having previously represented the opposing party. The rules do not, in fact, bar the attorney from involvement in matters in which he is representing a party whose interests are the same as those of the former client.

What the anti-smoking groups are really concerned about here is potential bias on the part of McCallum based on his having worked for a law firm that represented R.J. Reynolds. There is a conflict of interest rule that relates to the possibility that a lawyer may have a personal bias in the case: A lawyer must not represent a client if "the lawyer's professional judgment on behalf of the client will be or reasonably may be adversely affected by the lawyer's responsibilities to or interests in a third party or the lawyer's own financial, business, property, or personal interests." (Rule 1.7 - Conflict of Interest: General Rule)

So the question is whether or not McCallum's professional judgment on behalf of the government reasonably may be adversely affected by his previously having worked at a law firm that represented R.J. Reynolds in patent issues.

Now "reasonably" here denotes "the conduct of a reasonably prudent and competent lawyer." On its face, it seems to me that the mere fact that a lawyer previously was a partner at a law firm that did patent work for R.J. Reynolds would not adversely affect the judgment of a reasonably prudent and competent lawyer on behalf of the government in a RICO lawsuit against R.J. Reynolds and other tobacco companies.

I'm not stating that there is definitely not a personal interest in tobacco that could adversely affect McCallum's judgment as an advocate for the government's interests in this case. I'm just stating that there is nothing that, on its face, indicates that his judgment would be adversely affected by his prior employment.

Once again, more detailed facts are needed to make such a determination. But the fact that McCallum sought guidance from the DOJ Ethics Office certainly seems like an appropriate action and the fact that the DOJ Ethics Office cleared his participation should carry the day until such time as more information reveals that there is reason to believe that there are personal interests that would affect McCallum's judgment on behalf of the Department of Justice.

I'm not concluding that there is no conflict of interest or bias present in McCallum's involvement of the case. I'm just demonstrating that the issue is far more nuanced than anti-smoking groups have led us to believe.

Wednesday, July 27, 2005

Campaign for Tobacco-Free Kids Blasts R.J. Reynolds' Claim that Substantial Reductions in Smoke Constituents Reduce Health Risks

The Campaign for Tobacco-Free Kids yesterday blasted R.J. Reynolds for making a claim that a product which greatly reduces levels of a large number of tobacco smoke constituents will reduce health risks.

The Campaign accused R.J. Reynolds of false and deceptive advertising in marketing its Eclipse cigarette as one that might reduce health risks, such as cancer and chronic lung disease. Eclipse is a cigarette that heats, but does not burn tobacco, and which therefore has substantially lower levels of a number of carcinogenic and toxic smoke constituents.

According to the Campaign's statement: "RJR's unsubstantiated claims that Eclipse cigarettes 'may present less risk of cancer' and other serious diseases is just another example of how the cigarette companies have continued to make misleading statements about the health risks of their products. ... as study after study has found, there is no scientific basis for concluding that Eclipse cigarettes or any of the other so-called reduced risk products that have been marketed by R.J. Reynolds or the other tobacco companies have actually reduced the risk of tobacco related disease."

The Rest of the Story

This is an important story, because it documents that the Campaign for Tobacco-Free Kids is admitting that reducing, even by a substantial amount, a large number of carcinogenic and toxic constituents in tobacco smoke does not provide any substantiation that a tobacco product will be any safer.

If this is true, then there is also no substantiation that the performance standards in the FDA tobacco legislation that the Campaign is pushing would make cigarettes any safer, as the Campaign claims. After all, the performance standards would allow FDA to reduce or eliminate a number of the more than 40 carcinogens and more than 4,000 toxins in tobacco smoke. But that is precisely what R.J. Reynolds has done with its Eclipse cigarette!

For example, Eclipse produces mainstream smoke levels of the following chemicals that are between 80% and 95% lower than conventional cigarettes: isoprene, acetone, hydrogen cyanide, toluene, 1,3-butadiene, benzene, acrylonitrile, quinoline, NAT, NNN, catechol, hydroquinone, phenol, benzo(a)pyrene, and 2-aminonaphthalene.

I am not claiming that the Campaign is wrong in its assessment that reducing a large number of tobacco smoke constituents by a great amount does not provide any reason to conclude that a cigarette will be safer, as anyone who has read my previous post on this issue will recognize. But I am arguing that if the Campaign applies this correct reasoning to R.J. Reynolds' claims, then it should also apply the same reasoning to its own claims.

The Campaign, in fact, claims that the FDA legislation (through its performance standards) would "require changes in tobacco products to make them less harmful." This implies that eliminating or reducing the levels of certain tobacco smoke constituents will make cigarettes less harmful, since that is exactly what the performance standards are.

Until and unless the Campaign can provide some evidence that reducing the levels of certain tobacco smoke constituents will reduce human health risks, then it should cease and desist from making what amount to unsubstantiated health claims of its own. Is is not hypocritical for the Campaign to condemn R.J. Reynolds for making unsubstantiated health claims based on an assumption that huge reductions in tobacco smoke constituents will produce a safer product, but to use that very same reasoning to support legislation that it wants to see passed?

The rest of the story reveals that the Campaign for Tobacco-Free Kids - an organization which is relentlessly criticizing the tobacco companies for making misleading claims - is itself making an unsubstantiated claim -- and that claim is based on the same flawed reasoning that R.J. Reynolds is using to argue that its Eclipse cigarettes will reduce health risks. And now, the Campaign has itself admitted that this very reasoning is scientifically inappropriate.

R.J. Reynolds should certainly be held responsible for its misleading health claims, but so should the Campaign for Tobacco-Free Kids, an anti-smoking organization which, by its own admission, agrees that substantially reducing the levels of large numbers of tobacco smoke constituents does not imply any degree of reduced health risk.

Vermont Sues R.J. Reynolds for False Health Claims

Vermont, aided by an investigation conducted by nine states and the District of Columbia, filed a lawsuit Tuesday against R.J. Reynolds, accusing the company of making false health claims in marketing its Eclipse cigarettes. The suit was brought on the basis of state consumer protection laws as well as the Master Settlement Agreement. Eclipse is a cigarette brand that apparently heats tobacco and does not burn it.

Vermont Attorney General William H. Sorrell outlined three advertising claims made by Reynolds' advertising for Eclipse that he argues are misleading and unsubstantiated:
  • “Scientific studies show that, compared to other cigarettes, Eclipse may present less risk of cancer, chronic bronchitis, and possibly emphysema.”
  • “Eclipse responds to concerns about certain smoking-related illnesses. Including cancer.”
  • “The best choice for smokers who worry about their health is to quit. The next best choice is Eclipse.”
Sorell stated that “There is no second-best choice to quitting and there is no evidence that Eclipse is any less harmful than any other brand of cigarettes available on the market. By suggesting that Eclipse is a safer cigarette, R.J. Reynolds is misleading smokers, former smokers and non-smokers about the health consequences of smoking Eclipse.”

In response, R.J. Reynolds Executive Vice President and General Counsel Charles Blixt was quoted as stating: "We have science that backs up every single claim that we've made. It's fully substantiated. We have conducted millions and millions of dollars worth of research. The scientific data we have clearly leads us and our panel of independent scientists to conclude this might lead to less cancer, bronchitis, emphysema."

The Rest of the Story

It is not possible to provide a definitive commentary because I may not be aware of all the scientific data that R.J.Reynolds has obtained to back up its advertising claims. However, the company has made available a summary of scientific data on Eclipse. Assuming this represents the bulk of the data upon which the company's advertising claims are based, here is my analysis.

The available data document that Eclipse produces significantly lower levels of a number of carcinogenic and toxic components of mainstream cigarette smoke compared to conventional cigarettes, and compared to low-tar and ultra-low-tar cigarettes. It also has lower in-vitro mutagenicity, lower tumorigenic activity in animal studies, and produces lower urine mutagenicity in humans.

However, the only relevant human study conducted was an analysis of urine mutagenicity. There are no epidemiologic studies to document any changes in disease rates, nor any human studies to document clinical changes, such as reductions in measurable levels of DNA adducts.

While Eclipse lowers the levels of many carcinogenic and toxic agents in mainstream smoke, it was also found to substantially increase levels of two chemicals: furfural, with levels 6 times higher than in conventional cigarettes, and acrolein, with levels similar to those in conventional cigarettes but 3 times higher than in ultra-low-tar cigarettes.

Based on these data, I do not see any adequate scientific support to make a claim that smoking Eclipse cigarettes will, or even is likely to, reduce the risks of chronic obstructive pulmonary disease or cancer. I also do not see any adequate scientific support to make a claim that switching to Eclipse is the next best choice to quitting smoking.

In short, I think there is a very strong case against R.J. Reynolds for false and misleading advertising that constitutes consumer fraud under most state consumer protection statutes.

But this story has a very important lesson in it for anti-smoking groups, especially those which are supporting FDA legislation which they claim would protect the public's health by authorizing FDA to require reductions in the level of tobacco smoke constituents.

The lesson is that we simply do not know enough about the relationship between the specific components of tobacco smoke, their amounts, their interaction, and the development of disease to be able to conclude that reducing the amounts of certain smoke components is going to prevent disease, save lives, and improve the public's health.

But these are precisely the claims that health groups like the Campaign for Tobacco-Free Kids are relying upon to support the FDA legislation and to argue that it is an important public health measure that will save lives.

The rest of the story reveals that the precise argument that I think is going to nail R.J. Reynolds for false and misleading advertising in this lawsuit is also going to nail the Campaign for Tobacco-Free Kids' claim that the FDA legislation is going to save lives by making cigarettes safer.

There simply is not any sufficient scientific documentation to claim that reducing the levels of certain constituents in tobacco smoke will reduce disease and save lives.

Tuesday, July 26, 2005

Challenging Dogma (Post #3): Promoting a Smoker-Free Workplace

In my experience in tobacco control, I have observed a gradual bluring over time of the idea of promoting a smoke-free workplace to one that now encompasses the promotion of a smoker-free workplace.

The addition of that extra "r" makes a huge difference in my view. While it seems reasonable to promote a workplace free of carcinogens, it does not seem reasonable to me to promote worksites that are free of smokers.

In recent years, and especially over the past few months, I've observed an increasing number of employer policies that either make smoking a condition that precludes a person from being hired or that will actually cause a person to be fired from existing employment (see previous posts [1] [2] [3] [4] for examples).

And it's clear to me that a number of anti-smoking groups and advocates are supportive of these policies -- although a number are clearly not (see a debate on this issue, with arguments for and against the promotion of a smoker-free workplace, in the spring 2005 issue of Tobacco Control).

Before going further, let me emphasize that I'm not criticizing health promotion programs at the workplace that provide services to help smokers quit. And I'm also not talking about policies that relate to not hiring smokers because of a direct effect on job performance or a direct conflict with an employer's mission. I'm talking about employment policies that either: (1) refuse to hire smokers; or (2) fire existing smokers (whether giving them an opportunity to quit or not) for reasons other than the two mentioned above.

Anti-smoking advocates have justified their support for such policies primarily on the basis that smoking costs employers money in increased health care spending and therefore it is appropriate for employers to set a policy of simply not employing smokers. They have also argued that creating smoker-free workplaces will create an incentive for smokers to quit and will thus improve the public's health.

For example, one article favoring smoker-free workplace promotion argues that: "If we take the view that reducing smoking rates by all acceptable and effective means leads to greater population wide health benefits, then 'smoker-free' workplace policies merit consideration, and we need to consider just how far we are willing to go down the path of paternalism. ... if our employer is a money grubbing Mr Scrooge only interested in his share options, he might refuse to hire smokers because they take time off for smoking breaks and take more sick leave than do non-smokers. Mr Scrooge’s policy is not nice, but it may also mean his company can stay in business, which means his non-smoking employees will stay employed. A few percentage points of extra productivity can be important."

The Rest of the Story

To see just how weak the justification for policies that consider off-the-job smoking as a condition for employment is, let's take the two major arguments in support of such policies - that they will save money for employers by reducing smoking-related disease and improve the public's health by creating an incentive for people to quit smoking.

Now let's apply those same arguments to another potential condition for employment - obesity. It is well-established that obesity is a risk factor for morbidity and mortality. In fact, obesity raises health care costs for an individual considerably more than smoking. If employers are truly concerned about saving health care costs, then firing their fat workers and not hiring any fat new ones is the most important action they could take to save money and increase their bottom line.

And in fact, such a policy would certainly create an incentive for fat people to lose weight. Not being able to find a job is a powerful incentive to action. Thus, the policy would not only save money, but it would improve the public's health by reducing obesity as well as the morbidity and mortality that it causes.

A similar argument could be made for firing or refusing to hire people who eat a lot of fat in their diet. Increased fat intake has been associated with a number of diseases, including cancer.

Employers could also fire their sedentary workers - lack of physical activity is a well-documented risk factor for heart disease, which is, in fact, the predominant cause of disease and death in the United States.

And that's just chronic disease. Employers could lower health care costs and create an incentive to prevent acute disease as well -- like sexually transmitted diseases. Why not refuse to hire anyone who admits to having unsafe sex?

And imagine if we did all of those things? We could nearly eliminate health care costs for employers if we simply took all smokers, fat people, people who eat a lot of fast food, and people who watch a lot of television out of the workplace.

The problem is -- there is nothing inherent in the argument being made by the advocates who support the idea of making smoking a legitimate consideration in employment decisions that would make deem any of these other potential employment policies inappropriate.

In other words, such policies are a clear violation of the concept of privacy of workers.

Privacy is defined as "the quality of being secluded from the presence or view of others" and as a "state of being let alone and able to keep certain personal matters to oneself." Legal off-the-job activity, if it does not directly affect job performance or conflict with an employer's mission, is a matter whose privacy should be protected. There is no legitimate employer interest that I can see in terms of the above smoking-related policies that would authorize the invasion of an individual employee's privacy in this area.

From a public health perspective, I think that any interest in creating incentives for a healthier workforce are clearly and overwhelmingly outweighed by society's interest in preserving the privacy rights of its citizens.

Because some anti-smoking advocates have and are supporting such policies, which I view as an unwarranted intrusion into personal privacy of workers, I think it is not unreasonable for me to take a public position in opposition of such policies and therefore, in support of laws, such as that being discussed in Michigan (see my post supporting Senate Bill 381), which would not allow employers to use lawful, off-the-job behavior as a condition for employment unless it directly affects job performance or reflects on the company's mission.

The rest of the story reveals that the dogmatic perspective I have been exposed to in the anti-smoking movement, which views smoking as a horrible activity that we must do everything possible to eliminate, including using employment as a means of health policy promotion, lies in direct conflict with the protection of privacy rights of individuals. And there is no substantial societal interest I can see that outweighs the degree of intrusion into privacy rights that smoking-related employment policies entail.

I therefore reject the notion of creating smoker-free workplaces as being a legitimate public health approach.

Most importantly, I hope that anti-smoking groups and advocates that have supported such policies will begin to see that by doing so, they are contributing towards the creation of a second class of citizens: those for whom employment is not available because of private, lawful, voluntary behavior decisions which they have made. Is it really going to benefit society to relegate smokers, already a group with lower-income, to an even lower position in society, one in which they cannot obtain a job and support themselves and their families?

Monday, July 25, 2005

Welcome Readers from Reason Online, Forces International, and the Smoker's Club

Welcome readers from Reason Online's Hit & Run blog, from Forces International, and from The Smoker's Club.

As I mentioned in my second Challenging Dogma post, the anti-smoking movement has a tendency to lump together anyone and everyone who disagrees with its positions as being affiliated with the tobacco industry, and to attack these groups and individuals rather than address their arguments on their merits. But not everyone who takes a different view on these issues is part of the tobacco industry.

Forces International is in fact one organization that I had been led to believe was simply a tobacco industry front group. The Americans for Nonsmokers' Rights (ANR) website lists FORCES under the category "Front Groups and Allies." And it states that "Even though the National Smokers' Alliance is now (sort of) defunct, the background information from this document is still relevant to other smokers' rights groups such as FORCES." Since that document states that the National Smokers' Alliance was created by and heavily funded by the tobacco industry funding, I would assume ANR is implying that FORCES was also created by the tobacco industry and is heavily funded by the tobacco companies.

The Rest of the Story

In fact, ANR itself reveals that FORCES was offered and did not accept tobacco industry funding. A 1999 Philip Morris document stated that: "The most prominent of the smokers' rights organizations is FORCES (Fight Ordinances & Restrictions to Control and & Eliminate Smoking). FORCES does not accept tobacco industry funding."

Just because ANR disagrees with FORCES on issues does not justify misleading the public into thinking that this organization is merely a tobacco industry front group (and if I was misled, it is likely that many in the public who read this site are being misled).

I suppose ANR could defend itself by arguing that FORCES is listed under "Front Groups & Allies" rather than just "Front Groups." But you know what: that's exactly the point. In ANR's view, there's no difference between the two. They can just lump them together because they essentially represent the same thing - groups that disagree with ANR's views on the issues and therefore need to be attacked.

Individuals who are not part of the tobacco industry but who disagree with certain policies related to the regulation of smoking are not, in my view, merely promoting tobacco industry interests. In fact, there are a number of interests - including privacy rights, the need for evidence-based policy formation, and concerns about unfair and discriminatory policies - that anti-smoking organizations would be wise to consider. While I disagree with some of these groups' arguments, I agree with some of them, and will be continuing to comment on these over the next few weeks in my Challenging Dogma posts.

Ultimately, I view smokers not as the enemy, but as the very population that led me to this field in the first place. I am in public health and focusing on the smoking issue because as a physician, I saw first-hand the devastating health effects that smoking can have on individuals and their families, and I wanted to do something about it.

But attacking the smokers, tying them to the tobacco industry whenever they argue against tobacco control policies, and taxing them whenever we need more money for underfunded government programs just doesn't seem like the most reasonable approach to me.

Thus, welcome again to my new readers from Reason Online's Hit & Run blog, from Forces International, and from The Smoker's Club.

On McCallum and Conflict of Interest in DOJ Lawsuit: An Analysis

A number of anti-smoking groups have been quick to attack Associate Attorney General Robert McCallum for his involvement in the DOJ litigation against the tobacco companies, implying or stating that he has a conflict of interest based on his former employment as an alleged "tobacco industry lawyer."

For example, Americans for Nonsmokers' Rights (ANR) has gone so far as to ask the public whether there is "a cancer on the Justice Department." ANR states that: "the Justice Department, led by political appointees with tobacco ties, is attempting to torpedo the case in its final hours." One of the political appointees to whom ANR refers is McCallum. So the intent here seems to be to attack McCallum for destroying the case. Elsewhere, ANR suggests that McCallum, with his "tobacco industry ties," improperly interfered in the case.

An ethics investigation has been called for, and the Inspector General will presumably conduct such an investigation.

The Rest of the Story

While I have previously explained why I find it unacceptable for ANR to publicly accuse McCallum of being a "former tobacco industry lawyer," here I discuss the actual substantive issue of the potential conflict of interest and explain why I think the anti-smoking groups' attacks are premature and unwarranted.

First, had McCallum previously represented R.J. Reynolds, then there would be a clear conflict of interest. The problem is that he has never represented R.J. Reynolds or any other tobacco company. He was a partner at a law firm that represented R.J. Reynolds in patent work, but he himself was apparently not directly involved in those cases.

So the question is a bit more complex. It really involves two issues:
  • whether or not disqualification from this case is required by virtue of McCallum's conflict with a former client; and
  • whether or not disqualification from this case is required by virtue of the subject matter of the case involving his former law firm.
1. Conflict with a Former Client

Does the DOJ case represent, for McCallum, a conflict of interest with a former client (i.e., R.J. Reynolds)?

Based on legal ethics rules and law relevant to the District of Columbia, the primary issue appears to be whether or not there is a "substantial relationship ... between the subject matter of a former representation and that of a subsequent adverse representation." [Derrickson v. Derrickson, 541 A.2d 149 (DC 1988)]

Determining whether or not there is a substantial relationship, in turn, requires a judgment of "whether the factual contexts of the two matters overlap." [Brown v. District of Columbia Bd. of Zoning Adjustment, 486 A.2d 37, 42 (DC 1984)]

Note that this determination clearly requires "an analysis of the facts and legal issues." [DC Ethics Opinion 237 (1992)]

The most important consideration appears to be "whether the lawyer was in a position to obtain confidences of the former client that could be used adversely to the former client on behalf of the new client." [DC Ethics Opinion 175 n. 2 (1986)]

So because McCallum did not individually represent R.J. Reynolds, but his previous firm did, the most important question is whether McCallum, as a partner in the firm, became aware of confidences of R.J. Reynolds that could be relevant to the current litigation. Do any of the facts made known to McCallum as a partner in the firm have relevance to the current case? If not, then it does not appear that there is any conflict with a former client.

Moreover, two things need to be true in order for this conflict to be present. First, McCallum had to have been aware of confidences or facts related to R.J. Reynolds, and second, those confidences or facts have to be relevant to the current case. From information that is currently available to ANR and other anti-smoking organizations, I do not see how such a determination could possibly have already been made.

It is not clear, in the first place, that any of the facts or issues involved in patent work for R.J. Reynolds have any relevance to the RICO case. It is equally unclear whether or not McCallum had any knowledge of the facts of the R.J. Reynolds litigation based on his position as a partner in the firm.

2. Conflict with Client of Former Law Firm

Based again on D.C. legal ethics law, it appears that four things must be true to determine that a conflict of interest with a client of an attorney's former law firm exists: "(1) the lawyer must have formerly represented the client; (2) the new matter must be the same as or substantially related to the prior representation; (3) the position of the prospective new client must be adverse to that of the former client; and (4) the lawyer must actually (not just imputedly) have learned information confidential to the former client which is material to the new representation." [DC Ethics Opinion 273 (1997)]

Once again, the key issue is whether or not the subject matter of the prior and former work overlap substantially and whether McCallum actually learned information while at his former law firm that is material to the DOJ case. And once again, it is unclear if either of these is the case.

There is one final consideration. The Department of Justice ethics manual states that "If you are an attorney, you will have to disqualify yourself in cases you handled before entering the Government, and from other matters involving your former law firm or clients for a certain period, usually several years."

So the relevant issues are: (1) whether the DOJ matter involves his former law firm; and (2) how many years is "several" years?

Again, it is unclear whether the DOJ case involves the former law firm in this case, since that law firm was doing patent work and it's unclear if there is substantial overlap. But assuming that there is overlap, then the issue is how many years must go by before McCallum can become involved in matters involving his former law firm (assuming no involvement of clients he previously represented)?

There is no clear answer to this question, since "several" is not defined. McCallum joined the Bush Administration in 2001, so his involvement in the case at this time would mean four years had transpired. Is that sufficient?

I don't know, but what does seem clear is that McCallum asked the Department of Justice's Ethics Office to make an independent determination of whether he had to recuse himself from this case, and the Ethics Office apparently decided that was not required.

There are two important findings from this analysis:

First, the facts as we have them now do not seem sufficient for anti-smoking groups to be attacking McCallum for ethics violations. We simply do not have the information that is required to make such determinations. There is no obvious or inherent conflict of interest and the determination rests on specific details of McCallum's involvement in the R.J. Reynolds work at Alston & Bird, as well as the nature of that work, that are not available to anti-smoking groups. Thus, I view it as premature, and therefore inappropriate, for these anti-smoking groups to be attacking McCallum at this point in time for ethical violations.

Second, the facts as we have them now suggest that McCallum acted appropriately in seeking a determination from the DOJ Ethics Office, and since that office apparently cleared him to work on this case, he deserves the benefit of the doubt until such time as information is available that would over-ride the Ethics Office's decision.

Note that the DOJ Ethics Office is not the ultimate arbiter of the matter. However, the fact that McCallum did appropriately take his concerns to that office should have caused anti-smoking groups to hold off on attacking him until such time as information becomes available to suggest that an ethical violation took place.

As I have observed from my experience in the anti-smoking movement, many anti-smoking groups are so anxious to jump on the attack of anyone affiliated in any way with the tobacco companies that they are not willing to wait for the facts before doing so. This, I believe, is one of those cases.

The rest of the story suggests that the rules and laws governing legal conflict of interest based on conflicts with former clients or clients of former law firms need to be applied to McCallum's situation before a judgment can be made of whether he committed any ethics violation. The available information is not, on its face, sufficient to implicate him in any ethical wrongdoing. And it is not sufficient, in my opinion, to justify anti-smoking groups attacking this individual.

When the investigation into the matter is complete, Robert McCallum can and should stand in judgment. But to judge him before the relevant facts are in is unjust, inappropriate, and I believe, irresponsible for a public health organization.

Saturday, July 23, 2005

Anti-Smoking Groups Granted Status to Intervene in DOJ Case, But Still Don't Seem to Understand Legal Issues

D.C. District Court judge Gladys Kessler yesterday granted the motion of six anti-smoking groups to intervene in the DOJ tobacco lawsuit. The groups, which include the Tobacco-Free Action Fund (an arm of the Campaign for Tobacco-Free Kids), the American Cancer Society, the American Lung Association, the American Heart Association, and Americans for Nonsmokers' Rights, will be permitted to file briefs related to their suggested remedies should the tobacco companies be found guilty of RICO violations.

In a press release, the Campaign for Tobacco-Free Kids (TFK) stated: "It is unfortunate that the government has failed to call for the strongest remedies possible in order to protect the public health. However, with Judge Kessler’s decision today, we look forward to putting on the strongest case possible."

William Corr of the Campaign for Tobacco-Free Kids was quoted as stating: "The government is no longer representing the health interests of the American people. Our organizations will do so."

In response to Kessler's ruling, Philip Morris' associate general counsel William Ohlemeyer was quoted as saying: "This case is not a public policy forum, and regardless of how well intentioned the intervenors positions are, they reflect a profound misunderstanding of the facts and the law that must be considered in deciding this case."

The Rest of the Story

I have to admit that I find myself in the strange position of having to agree 100% with William Ohlemeyer of Philip Morris. He is right - this legal case is not a public policy forum, as the intervening public health groups appear to think. And I do believe that these anti-smoking groups have demonstrated a profound misunderstanding of the law that must be considered in deciding the case.

Just look at what TFK states in its press release: "the government has failed to call for the strongest remedies possible in order to protect the public health." Well, neither has the Campaign for Tobacco-Free Kids. The strongest remedy possible would be to close down the tobacco business. That would certainly restrain and prevent future RICO violations. But there's just one problem: it is not consistent with the law.

What groups like TFK appear not to understand is that this case is not about what remedies would be most effective in protecting the public health. Protecting the public health is not the objective of the case. The objective is more narrow than that: specifically, it is to achieve justice under the law, which in this case is the RICO statute, as interpreted by Judge Kessler and by the D.C. Court of Appeals, whose decision currently governs the case. So the objective is to fashion remedies not that are effective public health measures, but that are effective ways to prevent and restrain future RICO violations under the law.

And in order to be permissible, such remedies must be forward-looking remedies that aim to prevent and restrain future violations. The key remedy that TFK and other groups are seeking is one which would require the companies to pay $130 billion for a smoking cessation program for current smokers. Clearly, this is not consistent with the law governing the case because it is a backwards-looking remedy designed to redress past industry wrongs, not prevent future wrongs.

Anti-smoking groups really are treating this as a public health policy forum, not a court of law. And Ohlemeyer is right - that doesn't necessarily reflect bad intentions, but it does reflect a misunderstanding of the issues that the court must consider in deciding the case.

Perhaps the biggest fallacy of TFK's argument is that by requesting bigger remedies (i.e., more money), it will be "putting on the strongest case possible." On the contrary, requesting more money for a remedy that is inconsistent with and not allowable under the law does not strengthen the case. If anything, it weakens the case by making a mockery of the government's arguments in the case.

When and if it the case gets to the D.C. Court of Appeals, that court is not going to look favorably on the government's nearly complete disregard for its ruling. It's like when one of my students ignores the instructions on an assignment. You can't expect to get a good grade when you don't follow the clear instructions. And until recently, the Department of Justice was not following the instructions. The anti-smoking groups are still not following the instructions and, unlike the Justice Department, they don't even appear to be aware that those instructions exist (or else they are just completely ignoring them).

I can't close without noting the tremendous irony of TFK's statement that it will represent "the health interests of the American people." This from an organization that is representing the best interests of the nation's leading tobacco company - Philip Morris - by helping lobby for the FDA legislation, which is Philip Morris' chief legislative priority for the 2005 Congressional session.

I wouldn't trust the Campaign for Tobacco-Free Kids to represent the health interests of the American people if they were the last health group standing.

The rest of the story suggests that William Ohlemeyer has the anti-smoking groups pegged just about right: they may be well-intentioned in seeking effective public health measures to reduce tobacco use, but they are demonstrating a profound misunderstanding of the law."

Friday, July 22, 2005

New Analysis Questions Whether FDA Legislation Would Effectively Preempt State and Local Clean Indoor Air Efforts

A new analysis of the proposed FDA tobacco legislation being released today on The Rest of the Story questions whether the bills presently before Congress would effectively preempt or undermine state and local efforts to regulate secondhand smoke by allowing FDA to set a standard for secondhand smoke. The analysis was written by Billy Williams, a member of the Lay Advisory Board of the Flight Attendant Medical Research Institute (FAMRI).

The analysis points out, through a careful reading of the legislation (H.R. 1376), that the bill effectively gives FDA the authority to set a standard for secondhand smoke, by granting FDA authority to regulate any and all tobacco smoke constituents. At very least, the legislation is likely to be perceived by state and local policy makers as occupying the field of regulation of secondhand smoke. In this way, the bill will effectively preempt or at least undermine state and local efforts to regulate secondhand smoke, even though the bill does not explicitly preempt such measures.

by Billy J. Williams

There is no need to speculate about Philip Morris’ goal in supporting FDA legislation of tobacco products because the company’s major goal is clearly stated on the company’s website where the company states:

“We want to work with public health officials and the federal government to establish a federal standard regulating secondhand smoke in public places.”[1]

Now, everybody knows that the FDA legislation does not say that it provides authority for the FDA to set a federal standard for secondhand tobacco smoke. However, it appears that only Philip Morris and I are aware of one of the rules of statutory construction that applies to the FDA legislation, so I want to review that rule.

As stated by the United States Supreme Court: “If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation.”[2]

Now, let us look at the gap that Congress left for Philip Morris to ride its Trojan Horse. It is important to note just what Congress prohibited the FDA from doing because the FDA has the authority to issue tobacco product standards in all other areas.

(3) POWER RESERVED TO CONGRESS.—Because of the importance of a decision of the Secretary to issue a regulation establishing a tobacco product standard— (A) banning all cigarettes, all smokeless tobacco products, all little cigars, all pipe tobacco, or all roll your own tobacco products; or (B) requiring the reduction of nicotine yields of a tobacco product to zero, Congress expressly reserves to itself such power.[3] [Emphasis added].

Since Congress did not expressly prohibit the FDA from setting a standard for secondhand tobacco smoke, let us see if there is any language in the legislation that would permit the FDA to set a secondhand tobacco smoke standard.

(3) TOBACCO PRODUCT STANDARDS.—The Secretary may adopt tobacco products standards in addition to those in paragraph (1) if the Secretary finds that a tobacco product standard is appropriate for the protection of the public health. This finding shall be determined with respect to the risks and benefits to the population as a whole, including users and non-users of the tobacco product . . . [Emphasis added].

(4) CONTENT OF TOBACCO PRODUCT STANDARDS.—A tobacco product standard established under this section for a tobacco product—

(A) shall include provisions that are appropriate for the protection of the public health, including provisions where appropriate— (ii) for the reduction or elimination of other constituents, including smoke constituents, or harmful components of the product; . . . [Emphasis added].

(B) shall, where appropriate for the protection of the public health, include—(i) provisions respecting the construction, components, ingredients, additives, constituents, including smoke constituents, and properties of the tobacco product;[4] [Emphasis added]

We only have to answer one question to determine if the FDA legislation authorizes a standard for secondhand tobacco smoke. The question is: “How do you protect the public health and set a tobacco product standard for the constituents for smoke in a tobacco product without also setting a standard for exposure to secondhand tobacco smoke?” The answer is that you can’t.

Furthermore Section 917, PRESERVATION OF STATE AND LOCAL AUTHORITY, states, in pertinent part: (a) In General (1) Preservation. Nothing in this chapter, or rules promulgated under this chapter, shall be construed to limit the authority of . . . a State or political subdivision of a State . . . to enact, adopt, promulgate, and enforce any law, rule, regulation, or other measure with respect to tobacco products that is in addition to, or more stringent than, requirements established under this chapter, including a law, rule, regulation, or other measure relating to . . . exposure to . . . use of tobacco products. . .”

Therefore, the FDA legislation clearly permits the FDA to set a standard for secondhand tobacco smoke. Since the legislation requires that the benefits to the users of the products be considered, the standard for secondhand tobacco smoke will not be zero. Although the standard will not preempt state or local smoking laws or ordinances, it will be a problem for tobacco control.

Those who support this FDA legislation have put the saddle on Philip Morris’ Trojan Horse and cinched it up without realizing that we are going to have to step in the manure from the Trojan Horse.

[1] Philip Morris USA, Policies, Practices & Positions, Regulation of Public Place Smoking.

[2] Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 2782 (1984).

[3] S. 2461, page 60.

[4] S.2461, pages 53-55.

Thursday, July 21, 2005

Political Campaign to Denigrate McCallum Working: Public Buying Misleading Information

From my recent review of internet postings related to Associate Attorney General Robert McCallum, it appears that the public is largely confused about the exact nature of McCallum's prior employment with respect to tobacco industry clients. As I previously predicted, statements like those issued by Americans for Nonsmokers' Rights, which inform the public that McCallum is a "former tobacco industry lawyer," appear to have been successful in misleading the public about his affiliation with the tobacco industry as well as the seriousness of his potential conflict of interest in the DOJ tobacco case.

A systematic review of the way McCallum is being portrayed in internet postings, which I think likely reflects the public's understanding of the nature of his prior employment with the tobacco companies and of the severity of any potential conflict of interest in his litigating against the industry now, suggests that there is probably a serious misunderstanding out there concerning the facts of the matter.

I will not discuss every example out there, but here is a sampling of the types of claims that are being made and the nature of public discourse about the issue:
example 1
example 2
example 3
example 4

The Rest of the Story

Before I am attacked, let me emphasize two things that I am not saying:

First, I am not saying that McCallum does not have a conflict of interest or that he didn't commit any ethical violations by involving himself in the tobacco litigation. I'm simply stating that I think it's important for him and his actions to be judged on the actual facts of the matter, rather than on an incorrect perception or understanding of the facts.

Second, I am not saying that it was solely groups like ANR that are responsible for any misunderstanding that the public has. Newspapers, like the Washington Post, carried the misleading statement that McCallum is a former tobacco industry lawyer, which appears to have originated in Congressmen Waxman and Meehan's letter to the Inspector General. Nevertheless, if anti-smoking groups are contributing to the spread of this misinformation and they are, at the same time, aware that their communications may be misleading, then I do think they share in the responsibility for misleading the public.

What my review suggests to me is that the public tends to think that McCallum formerly represented tobacco clients and is now litigating against those clients. That would be a conflict of interest so severe and an ethical violation so egregious that I think it could possibly cause irreparable harm to McCallum's character and career.

Do I think McCallum should be spared from harm to his character and career? I don't know. I think we need to wait until the investigation has been completed to cast judgment on him and his role in the case. But what I do think is indisputable is that he deserves to be judged based on the facts. And in this case, the fact is that he never represented R.J. Reynolds in litigation. But in my opinion, the majority of the public who is familiar with this story believes that he has.

I do not think that is just. And I do not, therefore, find it acceptable that anti-smoking groups may have contributed to the public's misperception in a way that may inappropriately denigrate the reputation and character of an individual.

Tobacco Companies File Motion to Dismiss Two Remedies in DOJ Case

The tobacco industry defendants in the DOJ case yesterday filed a motion with the D.C. District Court asking Judge Gladys Kessler to throw out two of the monetary remedies that the government has requested: tobacco industry payments for a national smoking cessation program and for a national anti-smoking education campaign geared at preventing youth smoking.

The government has requested $10 billion over an initial five-year period to fund a national smoking cessation program and an additional $4 billion for an anti-smoking media campaign to be run by the American Legacy Foundation.

The tobacco industry's central argument is that both of these remedies are not permissible under the D.C. Court of Appeals' decision that disallowed disgorgement of past industry profits as a remedy for its alleged RICO violations. The industry now argues that both a smoking cessation program and a smoking education program are intended to redress past industry wrongs rather than to prevent and restrain future RICO violations, and thus, like disgorgement of past profits, are not consistent with the appellate court's decision.

The Rest of the Story

This may be a first for me, but I think the tobacco companies make a very strong argument that has clear legal merit, and I think their motion should be granted. The smoking cessation and anti-smoking media campaign remedies should be thrown out.

I have already explained (back on April 20) why I believe that these two remedies are inconsistent with the Court of Appeals' ruling. Here, I will simply repeat the clear language of that ruling: "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. ... 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."

There seems to be no question, in my mind at least, that like disgorgement, requiring the companies to pay for smoking cessation programs for current smokers and for an anti-smoking media campaign are not intended to prevent future RICO violations, but to remedy past industry wrongs, exactly what the appellate court has ruled is not allowable under RICO's civil remedies provision.

In fact, I would go so far as to opine that these remedies would likely increase the chances of future RICO violations. If the industry is faced with a national anti-smoking campaign and smoking cessation programs that may significantly reduce the number of current and future smokers, this will create a strong incentive for them to do everything possible to counteract these campaigns by recruiting new smokers and dissuading current smokers from quitting. Committing the kind of RICO violations that have been alleged would be an ideal way of accomplishing this.

Thus, I feel that it is reasonable to argue that rather than prevent and restrain future RICO violations, establishment of a national smoking cessation program and a smoking prevention media campaign will create powerful incentives for the industry to continue to commit RICO violations.

Wednesday, July 20, 2005

Challenging Dogma (Post #2): Anyone Who Disagrees With the Anti-Smoking Movement is Affiliated with the Tobacco Industry

In the 20 years that I was a member of the tobacco control movement, I was led to believe that there were only two sides to any anti-smoking issue: our side and the tobacco industry side. Therefore, anyone who disagreed with our position had to be, in some way, affiliated with the tobacco industry. I was also taught to respond to their arguments not on any scientific grounds or on the merit of their arguments, but by simply discrediting the person by attacking their affiliation with the tobacco companies.

I think it was largely my years of affiliation with Americans for Nonsmokers' Rights (ANR) that led me to this perspective. But this perspective is by no means unique to ANR.

A prime example of this perspective is a November 2001 article published in the American Journal of Public Health, entitled "Junking Science to Promote Tobacco." The abstract of the article makes it clear that the paper's purpose is to discuss "the ways the tobacco industry has
created controversy about risk assessment and about the scientific evidence of the health hazards of secondhand smoke." Note that the article is about how the tobacco industry undermines the science.

In a section titled "Distorting Risk," the paper states: "There are many groups and consultants who were funded by the industry, both directly and through subsidiary companies, and who provided the tobacco industry with ample material, in the form of testimony, reports, and other publications, to fight tobacco policy and regulations."

One such individual mentioned in the section is Martha Perske. According to the article: "In February 2001, on the Web site, Martha Perske provided a critique of studies linking passive smoking and lung cancer. In the article, she grossly misstates the WHO’s work in this field. Perske has no formal scientific training and her one publication in the peer-reviewed literature is a letter to the editor—which appeared, incidentally, in the journal edited by Alvan Feinstein. She describes herself as a “smokers’ advocate,” but industry documents show that she stayed in close contact with Philip Morris, asking for their review of and comments on her activities."

Without a doubt in my mind, this article is attempting to malign the character of Martha Perske by claiming that she is, in fact, simply an arm of the tobacco industry - an example of an individual who the tobacco industry is using to do its work for it. By the context in which this attack appears, it clearly, in my mind, construes to the reader that Perske is part of the tobacco industry's effort to undermine science, and more specifically, that she is affiliated with the industry. The paper even cites tobacco industry documents in an attempt to support its claim.

The Rest of the Story

There's just one problem.

Martha Perske has nothing to do with the tobacco industry. She is not affiliated with the industry. She has not received money from the industry. She is a private citizen who happens to have devoted a significant portion of her "free-time" to what she perceives as a pursuit to promote policy that accords with her interpretation of the scientific facts (albeit an interpretation that differs from most in the tobacco control movement).

I have known Ms. Perske for the past 10 years, over which time we have corresponded, both in writing and by telephone, many times about some quite sophisicated issues related to the interpretation of epidemiologic studies relating secondhand smoke to lung cancer risk. During my time as a public servant at CDC, Ms. Perske was one of the most intelligent, insightful, and engaged citizens who I served, even though she disagreed with my own scientific work and subsequently published one of the most scathing (and scientifically meticulous and insightful) critiques of my work.

In fact, Ms. Perske's work has nothing to do with the tobacco industry, and she is certainly not a part of the tobacco industry's efforts to undermine science.

In my view, the AJPH article is inaccurate, or at very least, misleading in the way it portrays Martha Perske. And because it distorts the truth of the matter in a way that could harm the reputation of this individual, I view it as being irresponsible. That there seems to be an assumption that someone who has views that differ from the anti-smoking view must automatically be working for the tobacco industry is unfortunate. And that the public would be misled to believe that a private individual was just a pawn in a tobacco industry campaign is disturbing.

What is most disturbing to me is that the paper attempts to malign this individual's character and to discredit her arguments solely on an implied claim that is false: that she is simply a tobacco industry mole.

In fact, her work is scientifically meticulous and quite insightful, and it deserved to be addressed on its merits. My own examination of the work that Perske has done reveals arguments that reflect the most critical concerns regarding the epidemiologic issues at hand. In fact, of all the critiques written of my work, there is none that comes close in scientific merit, in my opinion, to that which Ms. Perske has put together.

I recently revealed an experience in which ANR refused to allow me to clarify my own statement about two non-industry authors who disagreed with the evidence relating secondhand smoke and lung cancer because it didn't want to do anything that could possibly be construed as saying something positive about these individuals and thus giving them credence, even though it would have been absolutely true, and clearer than my original text (and more importantly, even though I was the author and had copyright of my own article).

Most recently, ANR has apparently decided not to clarify its misleading personal attack against yet another individual. This time, ANR has claimed that Associate Attorney General Robert McCallum is a "former tobacco industry lawyer." This attack, which is clearly intended to malign his character, is at best misleading, and at worst, inaccurate: the truth is that McCallum never represented the tobacco industry in any litigation or any other matter in his life (to the best of my understanding). He happens to have been a partner at a firm that did patent work for R.J. Reynolds, but he never represented the company himself. I don't see how that makes him a tobacco industry lawyer. Even if technically correct under some absurdly broad interpretation of the term, it is still clearly misleading to large numbers of people in the American public who are reading this attack on the ANR website.

As I have found out over the past two decades, there are a lot of individuals who disagree with a number of positions that the anti-smoking movement has taken (interestingly, now I find myself to be one of them). And not all of these individuals are affiliated with, or working for the tobacco industry. As individuals who are not part of a tobacco industry campaign, these people are entitled to express their opinions and their arguments really deserve to be addressed on their merits. At very least, anti-smoking organizations and advocates should not attack these individuals. Attacking their arguments is legitimate, but attacking the individuals, in these cases, is not.

Looking back, I have to admit that I am sorry to have been part of a movement that has such a narrow view of the world that it sees only two sides to any tobacco control issue - its own side and the tobacco industry side, and which has therefore attacked individuals who take a differing view, assuming without appropriate evidence that these individuals are part of a tobacco industry campaign.

It is simply not fair to people like Martha Perske. I have always been impressed with the tremendously well-researched, meticulous, and precise work that she has presented. I also respect the fact that she has taken the time to research and write on these issues as an individual citizen. So I am sorry to have been a part of a movement that treated her in the way that it did.

The rest of the story reveals that anti-smoking organizations and advocates have, and still do, jump at the opportunity to attack the character of individuals who disagree with their positions and to attempt to discredit their arguments not based on their merits, but on the assumed affiliation of these individuals with the tobacco industry; however, the evidence to back up such assertions is not always sufficient, and in some cases, the public has been misled, resulting in undue harm to the reputation of these individuals.

My experience and observations have led me to challenge this dogmatic perspective within the anti-smoking movement. There are now two sides to this issue, and I hope that both can now be heard. As Hugh Trevor-Roper wrote in his introduction to Mark Lane's Rush to Judgment: "The fact that the advocate believes his own version is not relevant: advocates often do. Before judgment can be given, the advocate of the other side must also be heard. ... He too believes in his brief. Thanks to that belief, he too may err in detail. But at least he has the right, which in America has often been denied to him, to a fair hearing. When both sides have been heard, and not before, posterity may judge."

Tuesday, July 19, 2005

DOJ Appeals Tobacco Suit Ruling to Supreme Court

The Department of Justice yesterday appealed to the Supreme Court the D.C. Circuit Court of Appeals' decision limiting remedies in DOJ's lawsuit against the tobacco companies. If the Supreme Court decides to hear the case and then overturns the appellate court decision, it would then allow the Department to seek disgorgement of past tobacco industry profits (valued at $280 billion) as a remedy in its RICO-based lawsuit, as well as to seek other "backwards-looking" remedies, including requiring the tobacco companies to pay for a public anti-smoking media campaign and for a national smoking cessation program (valued at $130 billion).

A decision by the Supreme Court on whether to hear the appeal is not expected until fall 2005, and if the case is heard, it is unlikely to be heard until spring 2006, with a final decision issued no earlier than June 2006.

In commenting on the development, the Campaign for Tobacco-Free Kids stated: "Regardless of the outcome of this appeal, we believe the government and the judge still have a wide range of remedies available to them, including properly funded tobacco cessation and public education programs..."

The Rest of the Story

There are a number of important implications of the Department of Justice's decision to appeal to the Supreme Court:
  • First, it heads off criticism by anti-smoking organizations that Bush administration political appointees had taken over the case and were attempting to destroy it in order to protect tobacco companies. Failing to appeal the case would have been a sure way to destory any potential for monetary remedies in the case.
  • Second, it heads off, at least temporarily, a settlement of the case. There is now no reason for the Department to settle the case, at least until the Supreme Court makes a decision about whether to hear the appeal.
  • Third, it most likely will allow Judge Kessler to hold off on issuing any decision in the case until after the resolution of this appeal.
  • Fourth, it extends the length of the case substantially, assuming there is no premature settlement. The Supreme Court will not issue its decision about whether to hear the appeal until at least this fall, and if heard, the case would not be decided until next summer.
Surprisingly, it appears that despite the appeal, the Campaign for Tobacco-Free Kids is still pretending that the appeallate court decision does not exist, as it continues to argue that backwards-looking monetary remedies designed as a remedy for past industry misconduct -- such as requiring the industry to fund public anti-smoking campaigns or smoking cessation programs for current smokers -- would be allowable under the law even if the DOJ's appeal is not heard or not decided in the Department's favor.

The fact that the Department of Justice is now taking the appropriate legal steps is apparently not enough to focus the anti-smoking movement's attention on what is appropriate under the law, rather than on how much money they can obtain for their causes.

Monday, July 18, 2005

Challenging Dogma (Post #1): Tobacco Taxes are Not Always Appropriate Public Health Policy

Over the past months, I have come to realize that there are a number of dogmatic points that I was taught to believe as a tobacco control practitioner that are not necessarily appropriate. In this series, I will discuss some of them.

To start, I was generally taught that increasing cigarette taxes is an appropriate and important tobacco control intervention. It leads to decreased cigarette consumption, which will in turn save lives. Importantly, there were no qualifiers placed on this perspective. Any cigarette tax, in my experience, is generally viewed by tobacco control organizations and practitioners as being a good thing.

If you look at the Campaign for Tobacco-Free Kids, for example, you'll see an organization that seems to support any cigarette tax increase. The circumstances for the tax increase and the legislative intent in proposing the tax increase do not seem to matter at all. It seems that the Campaign has never met a cigarette tax increase that it didn't like.

In fact, I remember a number of years ago being asked to contribute to an effort by the Campaign to increase cigarette taxes in all the New England states. That's it (at least in my perception) - the goal was simply to increase the cigarette tax - for whatever purpose the states felt they could put the money to use.

According to the Campaign's website: "Increasing cigarette taxes is a WIN, WIN, WIN solution for states – a health win that reduces smoking and saves lives; a fiscal win that raises revenue and reduces health care costs; and a political win that is popular with the public."

To be fair, I'm just using the Campaign as an example. My perception is that most anti-smoking organizations take a similar approach with respect to the issue of raising cigarette taxes.

The Rest of the Story

Here is why I think the dogmatic axiom that every cigarette tax is a good thing is not appropriate from a broader public health perspective:

Because it depends on the nature of the specific tax proposal.

After nearly 21 years of experience in tobacco control, I have now come to believe that it is simply not appropriate for public health organizations or practitioners to issue unqualified proclamations of support for increased cigarette taxes and to follow them up by supporting and promoting any and all cigarette tax increases.

I have finally come to realize that such an approach basically means that the legislative intent behind a proposed tax policy is irrelevant. If all cigarette tax increases are "win-win-win" scenarios, like the Campaign for Tobacco-Free Kids suggests, then the legislative intent behind a tax policy proposal (including the way in which the resulting revenues will be allocated) is irrelevant to the evaluation of the validity of that proposal from a public policy standpoint.

And that is extremely problematic to me. Should we in public health be willing to evaluate a public policy proposal in such narrow terms and without having the full information about the policy, including the reason for it?

I don't think so. While from the narrow perspective of an anti-smoking organization, it might seem enticing to go on record as supporting cigarette tax increases in any way, shape, or form, I don't believe that it is appropriate from a broader public health or public policy perspective.

Here is an example to demonstate this critical point: Suppose that the Massachusetts legislature decided to propose a 25 cents per pack tax increase in order to build a new set of public parks in Weston (the wealthiest town in the state). That certainly seems like a discriminatory and unfair policy (why should the state's smokers pay for a public park in Weston, which already has more beautiful parks than any other city, whose residents least need another park, and which has enough money to build its own anyway?).

But suppose that the legislature intended to build a series of parks in the poorest sections of Roxbury in inner-city Boston and decided that newly created cigarette tax revenue was the appropriate way to fund such a product. That might be considered to be a fair policy.

At very least, one would have to acknowledge two things: (1) that the legislative intent behind a policy proposal is an important part of a legitimate evaluation of that proposal; and (2) that the intended use of the resulting tax revenue is an imporant part of a legitimate evaluation of the policy proposal.

A third factor that has to enter the picture is what the alternative policies to the one being proposed might be. For example, just because the legislature proposes a 25 cent per pack tax on cigarettes to fund a series of new parks in Weston does not mean that that is the only potential source of funding for these parks, or that these parks are the most appropriate use for the revenue if the tax increase is enacted. The cigarette tax has to be weighed against other potential new revenue sources before one can judge the appropriateness of increasing the cigarette tax as a solution to the problem of the need for more parks in Weston. And the need for new parks in Weston has to be weighed against other potential state needs.

The point is that public policy analysis is a rich process and a number of factors must enter into it, including the legislative intent behind the policy and the alternatives to each of the various aspects of the policy. One cannot and should not evaluate such a complex policy as cigarette taxation in such general terms as organizations like the Campaign for Tobacco-Free Kids are doing.

I can't sit here today and proclaim that a cigarette tax increase is a win-win-win policy. If it is a cigarette tax to build more parks in Weston, then it is a lose-lose-lose policy because smokers lose (they are unfairly bearing the burden of paying for parks for the state's wealthiest citizens), the poor in Boston lose (because they are unfairly being neglected in deference to the wealthy and politically powerful residents of a more affluent town), and the potential beneficiaries of a number of other important uses of the revenues lose out as well (perhaps there are needs even more pressing than building more parks in Boston -- like cleaning up the existing ones).

When I look at a policy like the one just enacted in Minnesota, in which the problem of the state's budget woes was solved by balancing the budget on the backs of smokers, in the face of the decimation of the state's tobacco control program and the absence of any significant state-funded services available to benefit smokers (including programs to encourage kids not to smoke and to help adults to quit), and in the presence of other viable options for raising the needed revenue such as taxing the wealthiest of the state's citizens or corporations, I view it as an inappropriate public health policy. I'm afraid that I just don't see it as a resounding victory as the Campaign for Tobacco-Free Kids proclaimed.

Interestingly, in response to my post criticizing the Minnesota legislature for balancing its budget on the backs of smokers, most of the arguments mentioned to me were general ones that defended cigarette taxes (in general terms) as not being regressive. But these arguments fail to address the specific concerns I have about this specific policy. Are anti-smoking groups actually saying that they believe it is the nation's smokers who should be the source of all the revenue that is needed to balance state budgets in these difficult fiscal times?

Apparently, yes.

Because to the best of my knowledge, not a single anti-smoking group has ever come out against any proposed cigarette tax increase, including the one in Minnesota which I view as being not only unfair, but destructive of the chances for restoration of any meaningful state tobacco control program in Minnesota.

The rest of the story suggests that the view at least some anti-smoking organizations have on cigarette taxes is too narrow and shallow from a broader public health perspective, and that it ignores a number of concerns that are critical to a valid evaluation of specific tax proposal measures as public policy.

It is this broader concern for a more appropriate evaluation of specific cigarette tax proposals as a form of public policy that leads me to challenge the dogma that I have been trained to believe. I've not only met a cigarette tax that I don't like; it's one that I think is blatantly unfair, discriminatory, and regressive, destructive to tobacco control and public health purposes, and inappropriate and unjustified from a broader perspective of public health policy.