Wednesday, August 03, 2005

APHA Issues Statement Showing Lack of Understanding of Legal Issues in DOJ Tobacco Case

The American Public Health Association (APHA), in its August newsletter (The Nation's Health), weighed in on the DOJ tobacco case. Specifically, APHA criticized the Justice Department's decision to ask for just a $10 billion smoking cessation remedy instead of the $130 billion remedy originally proposed.

According to the newsletter, APHA Executive Director Georges Benjamin, MD, called the penalty request an "unconscionable" move that "places the financial interests of the industry above fighting this nation's leading cause of death."

Benjamin stated that: "The government's decision is bad policy, bad economics and downright short-sighted." He added that the revised remedy "is a betrayal of the nation's 45 million smokers, because most of them will not get the help they need in breaking their deadly addiction."

The APHA newsletter also attacks Associate Attorney General Robert McCallum for politically interfering in the case, calling him a "former tobacco industry lawyer."

The Rest of the Story

It is troubling to me that APHA, the nation's leading public health advocacy organization, appears to have such a shallow (actually, incorrect) understanding of the legal issues involved in the DOJ tobacco lawsuit that it is almost embarrassing to read its analysis of the case and its statement about what is involved.

"The government's decision is bad policy": I didn't know that this was a policy issue. I thought it was a lawsuit.

"bad economics": I didn't know this was an economic issue. I thought it was a lawsuit.

"and downright short-sighted": I didn't know that the plaintiff in the case is supposed to look beyond the facts of the case and the law that governs it.

The APHA statement that the new "plan" is a betrayal of the nation's smokers suggests that the organization, like the Campaign for Tobacco-Free Kids, appears to view this as a free-for-all tobacco policy and program opportunity, in which anti-smoking groups can ask for all the pet programs that they desire without any regard for what remedies are actually allowed by the law under which the suit was filed and the law that governs the case.

And asking for anything less than what these organizations apparently would like to see represents a betrayal of the public's interests and catering to the tobacco industry, rather than an attempt to follow the confines of the law.

This is not a policy forum. It is not a discussion to try to come up with the best programs to help the nation's smokers. There is no betrayal of smokers, as there was no obligation to them to begin with.

APHA doesn't seem to understand that this is a lawsuit, and the Department of Justice actually has to follow the law under which the case is being heard (i.e., the RICO statute) as well as the law that governs the case (i.e., the D.C. Court of Appeals ruling regarding permissible remedies).

The only remedies that are appropriate are those designed to do one and only one thing: to prevent and restrain the tobacco companies from further RICO violations. Any other remedy, even if it might be effective as a public health policy, is not appropriate and proposing it does not advance any public health cause nor deny the tobacco companies of anything.

While its apparent misunderstanding of the legal issues in the case is troubling but excusable based on perhaps simple ignorance of the legal framework involved, the misleading attack this public health advocacy group makes on an individual - Robert McCallum - is not excusable.

To call him a former tobacco industry lawyer is, in my mind, blatantly misleading to the public because he is not a former industry lawyer - he is, instead, a former partner in a law firm that represented a tobacco company. Calling him a former tobacco industry lawyer, in my opinion, implies that he has previously represented a tobacco company and this appears not to be the case.

Perhaps one could also excuse this misleading political smear attempt based on simple ignorance of the truth - but since it represents a public attack on an individual that could potentially lead to irreparable harm to him and his reputation, I don't buy that as a defense. I think if you are going to make a public attack on an individual, you need to be at least somewhat diligent in fact-checking and making sure that your claims are accurate.

Even a little bit of internet searching by APHA would have uncovered that McCallum never represented the tobacco companies in his life, and that instead, he merely happened to be a partner at a law firm that did patent work for R.J. Reynolds. They could have quite easily found that the claim that he is "a former tobacco industry lawyer" is misleading and without adequate foundation.

Unless, of course, they did their fact checking on the ANR (Americans for Nonsmokers' Rights) web site, where they would have themselves been misled into thinking that McCallum previously represented tobacco clients.

The rest of the story suggests that APHA - the nation's leading public health advocacy group - has a shallow (at best) understanding of the legal issues involved in the DOJ case and is making statements that completely disregard the fact that this is a lawsuit that must follow the dictates of law and the confines of the way that law has been interpreted by the courts.

The public health and tobacco control causes are good ones - but that doesn't mean that we are above the law.

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