Tobacco Company Defendants in DOJ Case Claim that Government and Anti-Smoking Groups Presented a Public Health Wish List

In its post-trial brief just submitted to the D.C. District Court hearing the DOJ case, the tobacco company defendants have claimed that the government and anti-smoking groups involved in the case have presented a wish list of public health interventions related to smoking, rather than a list of appropriate legal remedies permissible under RICO and its interpretion by the D.C. Court of Appeals.

According to the filing: "The Government could not have been clearer in its central message to the Court throughout the trial of this case: the Court should heed the clarion call of public health. From its first witness (former FDA Commissioner Dr. David Kessler) to its last (long-time tobacco control advocate Matthew Myers) and at every stage in between, the Government brought in the leaders of the tobacco control movement to share their vision of the nation’s progress toward a smoke-free society. No one was excluded: the designers of community anti-smoking interventions, the pillars of the Surgeon General’s reports, the Surgeon General himself, and even a cameo appearance by former President George Bush. ...

the Government has repeatedly invoked the mantra of 'improving public health' in an extralegal attempt to justify a series of multi-billion-dollar remedies—including a national cessation program, a public education and countermarking campaign, and a youth smoking penalty—that in no way meet the D.C. Circuit’s standard. This naked overture to use the judicial process in service of public health policy both corrodes the judicial function and openly flouts RICO law. It compromises the proper function of the courts because 40 years of history since 1964 has established the executive branch’s own dominant and continuing role as the architect of tobacco control. ...

The Government’s use of public health as a talisman of justice also is unapologetically contrary to law—indeed, the very law articulated by the Court of Appeals for application in this case. This is a RICO case. And those five simple words frame the only question that should be addressed now that the trial is over."

The Rest of the Story

On this one occasion, I think the tobacco companies have got it exactly right. There is no question in my mind that the government and the anti-smoking groups involved in this case have treated it as a public health policy forum regarding what national actions could be taken to reduce tobacco use in the nation.

It has basically been a free-for-all, in which various anti-smoking groups have put in requests for their pet programs:

• Not surprisingly, the American Legacy Foundation (through its front group: the Citizens' Commission to Protect the Truth) put in its request for billions of dollars for a national anti-smoking media campaign along the lines of its existing "truth" campaign.
• The Campaign for Tobacco-Free Kids and a number of other major anti-smoking groups intervened in the case largely in order to put in their own request for a multi-billion dollar national smoking cessation program for current smokers.

Neither of these multi-billion dollar programs have anything to do with the legal issues in the case at hand. Neither represents a remedy that is appropriately designed to prevent and restrain future RICO violations. In fact, both are designed to redress past industry wrongs, something that the D.C. Court of Appeals has specifically stated is not permissible under the RICO statute's civil remedies provision.

While I disagree with much of the tobacco industry's defense in the case, especially its defense to the RICO charge itself, I pretty much agree with its defense to the specific remedies requested by the government.

Specifically, I agree that "the Government has repeatedly invoked the mantra of 'improving public health' in an extralegal attempt to justify a series of multi-billion-dollar remedies—including a national cessation program, a public education and countermarking campaign, and a youth smoking penalty—that in no way meet the D.C. Circuit’s standard. This naked overture to use the judicial process in service of public health policy both corrodes the judicial function and openly flouts RICO law."

I would only add that another effect of the anti-smoking groups' actions in this case is that it corrodes their own credibility and integrity, since it has the appearance that these groups have put the law aside in an attempt to achieve huge monetary gains for the anti-smoking movement that are inappropriate under the law.