Friday, September 30, 2005

ANR-Proclaimed Big Tobacco Front Group/Ally Helps Lay Path to Bring Down Big Tobacco's Master Settlement

Despite being listed as a front group (or possibly ally) of Big Tobacco on the Americans for Nonsmokers' Rights (ANR) hitlist-like inventory of fronts for Big Tobacco, the Cato Institute has helped develop many of the legal theories that are now being used in an attempt to bring down the 1998 Master Settlement Agreement (MSA) between the major tobacco companies and 46 states.

In a 2000 policy analysis of the MSA featured on the Cato Institute's web site, entitled "Constitutional and Antitrust Violations of the Multistate Tobacco Settlement," the Cato Institute helped to identify and elucidate many of the legal theories that are now being used by the Competitive Enterprise Institute (another ANR-proclaimed Big Tobacco front group) to challenge the constitutionality of the MSA and to attempt to overturn it.

And yet another ANR-proclaimed Big Tobacco front group/ally - FORCES International - is now highlighting the questionable legality of the MSA and the multi-pronged attempts to overturn it.

In the policy analysis provided by the Cato Institute, the brief's author - Thomas C. O'Brien - suggests that the MSA violates the Commerce Clause and the Compact Clause of the U.S. Constitution and that the MSA violates federal antitrust laws: "The collusive actions of the tobacco companies under the MSA are destructive of competition; they are the types of actions that constitute per se violations of the antitrust laws."

And in its introduction to the policy analysis, the Cato Institute states: "The 1998 tobacco settlement is a sophisticated, white-collar crime instigated by contingency fee lawyers in pursuit of unimaginable riches. In collaboration with state attorneys general and the four leading tobacco companies, they concocted a scheme that forces all tobacco companies—even new companies and companies that didn't join the settlement—to engage in a program of price fixing and monopolization."

The introductory statement makes it clear that the purpose of the policy brief is to explore ways that Big Tobacco can be prosecuted for its antitrust violations: "States that are receiving billions of dollars from the settlement can hardly be expected to prosecute tobacco companies for antitrust infractions. Nor can the Clinton administration, which helped negotiate the MSA and is now pursuing a similar federal settlement with the industry. Fortunately, there are alternatives to public-sector enforcement. Injunctive relief and treble damage remedies are available in private lawsuits brought directly by injured parties, including smokers and nonparticipating tobacco companies."

The Rest of the Story

If ANR is correct and the Cato Institute and Competitive Enterprise Institute are merely tobacco industry front groups, then they deserve failing grades as fronts. Even as allies, they are not doing too well right now, as they have helped play a critical role in developing and implementing a legal action that threatens to bring down the settlement that is of great benefit to Big Tobacco.

And if FORCES is merely a front group or ally of Big Tobacco, it is not doing well either, as it is basking in the glory of seeing Big Tobacco and its price-fixing cartel with the states being seriously threatened.

After all, isn't a front group or an ally of Big Tobacco supposed to help Big Tobacco, rather than hurt it? Isn't a Big Tobacco front group supposed to promote the interests of the major tobacco companies, rather than to develop, pursue, or delight in a lawsuit that could, if successful, greatly harm the interests of these companies?

You'd have to think that the Cato Institute is a pretty pathetic front group if it is accusing the companies it is allegedly fronting for of being "white-collar" criminals. If that's what a front group does for you, then I certainly wouldn't want one for my organization.

Perhaps ANR was simply not aware of the Cato Institute's actions in going up against Big Tobacco. But to make matters worse, ANR itself admits that it was aware of them, citing on its web site the fact that the Cato Institute co-filed a brief alleging that the Master Settlement Agreement violated U.S. antitrust law.

Interestingly, ANR cites the Cato Institute's opposition to Big Tobacco's Master Settlement as a negative action taken by the Institute. By inference, that seems to mean that ANR is criticizing Cato for opposing the settlement, and ANR therefore appears to be defending Big Tobacco and its settlement.

Aha! It must be that ANR is an ally of Big Tobacco. After all, they are most certainly supporting Big Tobacco's best interests by criticizing a group for threatening Big Tobacco in court. Perhaps ANR should add itself to its "hit list."

Is ANR simply unaware of what the Cato Institute is trying to do here? Or is their bias against the Institute and their desire to portray this group as a Big Tobacco front simply so strong that they are unable to see an action that is not in the interests of Big Tobacco when it hits them over the head?

Most sadly, ANR is not simply providing useful information here, such as background factual information about the Cato Institute. Instead, its site really does read like a "hit list": ANR concludes its "fact sheet" by stating: "When sources from the Cato Institute appear in your community, please contact ANR at (510) 841-3032 or"

It makes Cato sound like criminals. And what exactly is ANR going to do if "sources" from the Cato Institute do appear in a community?

You know what - if "sources" from the Cato Institute appear in my community, the first thing I'll do is buy them a drink and show them around the town. Then I'll commend them for having the guts to go up against Big Tobacco in the courtroom, despite the hundreds of thousands of dollars they have received from them. At least they're willing to stand up for the principles in which they believe, even if their funding will most certainly be threatened. That's more than we can say for the states and their AGs, who put on a huge charade about caring so much about kids smoking, and now are defending the financial interests of Big Tobacco everywhere they can so that their own funding is not threatened.

Colorado State Treasurer Suggests MSA is Unconstitutional, Supports Competitive Enterprise Institute's Lawsuit

In a column published last week in the Wall Street Journal, Colorado State Treasurer Mark Hillman argues that the 1998 Master Settlement Agreement (MSA) between Big Tobacco and 46 state attorneys general (AGs) is unconstitutional and expresses support for a lawsuit by the Competitive Enterprise Institute (CEI) which challenges the settlement on the grounds that it "violates the Constitution and establishes a cartel designed to circumvent antitrust law and quash competition."

Hillman writes: "This Faustian bargain (the MSA) locks states into a sleazy partnership with Big Tobacco, enforced by a compact that violates antitrust law and undermines market competition. ... To add injustice to insult, the MSA takes money from predominately low- to middle-income smokers and transfers it to wealthy trial lawyers, some of whom reaped fees in excess of $100,000 an hour for their "work." On top of these affronts, the Constitutional objections to the MSA are manifold:
  • The Constitution stipulates that "No state shall … enter into any agreement or compact with another state" without the approval of Congress. The MSA has never been so approved.
  • The Constitution gives Congress exclusive authority to regulate interstate commerce. The MSA clearly usurps that authority.
  • Delegation of inherent state powers to the NAAG undermines the state sovereignty protected by the Tenth Amendment.
The question facing the courts is not whether the MSA is good policy or whether tobacco companies are scoundrels. The larger issue is whether AGs can rightfully evolve into a law unto themselves, usurping the Constitutional roles of state legislators, governors, Congress and, ultimately, the voters themselves."

In response to Hillman's remarks, an Associated Press story reported that Colorado Senate President Joan Fitz-Gerald defended the settlement, emphasizing that Colorado is dependent upon that funding for a number of essential services and losing that money would be a blow to the state. She was quoted as stating: "I can't count the number of services we rely on from the tobacco settlement. I can't imagine Mark Hillman aligning himself with big tobacco."

The Rest of the Story

I think Hillman's comments are on the mark. The MSA has indeed locked states into a partnership with Big Tobacco and it is enforced by a compact that does inhibit competition and which may well violate antitrust law.

As the Colorado Senate President's comments expose, the states are heavily dependent upon the settlement funding and therefore on the financial health and profits of the tobacco companies, making them partners. And states have little choice but to inhibit competition from non-participating manufacturers by enacting laws that impose escrow payments on those manufacturers (see previous post for the details of this scheme and the basic premise of the CEI lawsuit).

All in all, it was a brilliant scheme devised by the major tobacco companies, who I think took advantage of the greed and political aspirations of the nation's attorneys general. By tempting them with a pot of money and the prospect of being able to publicly take credit for changing Big Tobacco's ways, the tobacco company negotiators were able to get the AGs to agree to enter into this enforced partnership. The money was simply too much for them to pass up.

But the brilliance of the scheme is best revealed by Fitz-Gerald's (the Colorado Senate President) comment:

"I can't count the number of services we rely on from the tobacco settlement. I can't imagine Mark Hillman aligning himself with big tobacco."

First, her comment documents the extent of the partnership: the extent to which the states rely upon Big Tobacco funding for numerous services, too many to even be counted.

Second, her comment reveals the ultimate irony of the whole thing: Fitz-Gerald, just after exposing the partnership between herself and Big Tobacco, actually attacks Hillman for "aligning himself with big tobacco."

But that is completely absurd, because Hillman is not taking Big Tobacco's position!!!

Hillman is actually supporting a lawsuit that could, if successful, bring down the MSA, and against which Big Tobacco will most certainly argue vigorously in their defense.

So the MSA was truly brilliant. It created this partnership between the states and Big Tobacco, yet the states are not really even aware of it - they still appear to be under the impression that they are the ones fighting Big Tobacco and that anyone who opposes the MSA is aligned with Big Tobacco!

In other words, the MSA has created what Americans for Nonsmokers' Rights (ANR) might well call a "front group." The states, after all, are now heavily funded by Big Tobacco, these funds are viewed as essential to the infrastructure of these states and any loss of the funding is viewed as being a big blow, the states are representing the financial interests of Big Tobacco, and all of this is being done in a way that allows the companies themselves to remain behind the scenes. In fact, it is done in a way that the states actually make it appear that they are fighting Big Tobacco, and thus the role of the tobacco companies in the states' efforts to protect the companies remains disguised.

I'm torn between whether to close this post by chastising the Attorneys General for being suckered into signing such a devastating (to the public's health) scheme or whether to commend the tobacco company negotiators for their brilliance.

At any rate, according to the rest of the story, perhaps ANR should consider adding the 46 states which signed the MSA and the 46 Attorneys General who signed for them as one of its "Front Groups and Allies."

They certainly deserve that distinction far more than the Competitive Enterprise Institute, which is actually fighting to bring down those front groups and their ties to Big Tobacco.

Thursday, September 29, 2005

New Study Finds Smoking 1-4 Cigarettes Per Day is Hazardous; ACS Responds

A study published in the current issue of Tobacco Control reports that smoking 1-4 cigarettes per day is associated with increased risks of death from heart disease, lung cancer, and all causes.

The study was a longitudinal (cohort) study of more than 42,000 adults, ages 35-49, in Norway, who were followed for nearly 30 years. The adjusted relative risk among smokers of 1-4 cigarettes per day of dying from heart disease was about 2.8 and for dying from lung cancer was about 2.8 among men and 5.0 among women.

The authors conclude: "In both sexes, smoking 1-–4 cigarettes per day was significantly associated with higher risk of dying from ischaemic heart disease and from all causes, and from lung cancer in women. Accordingly, five cigarettes per day is not a threshold value for daily cigarette consumption that must be exceeded before serious health consequences occur."

In response to the study, the American Cancer Society (ACS) issued a statement, which read in part: "The finding that smoking just 1 to 4 cigarettes a day can significantly boost heart disease and cancer rates is important because many smokers, due to expanding restrictions on smoking in public places and at work, are cutting back on the number of cigarettes they smoke each day. By doing so, they often feel that they are sharply reducing or eliminating the health dangers from smoking. But this study shows that this is not the case and reiterates the important message that there is no such thing as a safe level of smoking."

The Rest of the Story

I think it's important to note, first of all, that the risk estimates reported here for smokers of 1-4 cigarettes per day are likely to be overestimates of the true risk. The reason for this is that exposure to cigarette smoking was measured at baseline but likely changed over the 30 or more years of the study follow-up. Because of the addictive nature of smoking, it is unlikely that smokers of 1-4 cigarettes per day were able to maintain that low level of smoking for 30 years. To the extent that these smokers increased their cigarette consumption, then the risks reported in the study for 1-4 cigarettes per day may really apply to a higher level of cigarette consumption.

On the other hand, there are two factors that could lead the risks to be underestimated. First, a number of nonsmokers at baseline may actually have started smoking and thus the mortality rates for nonsmokers may have been higher than they should have been. This is likely to be a small factor, because most smoking initiation begins well before age 35. In fact, the authors found that of 11,365 nonsmokers at baseline who were re-interviewed 10 years later, 10,762 were still nonsmokers.

Second (and probably more importantly), some of the 1-4 cigarette per day smokers may actually have quit smoking entirely. The authors did in fact find that of the 776 smokers of 1-4 cigarettes per day who were re-interviewed 10 years later, 237 were no longer smoking.

To determine whether the true risks of smoking 1-4 cigarettes per day are higher or lower than those reported in the study, one has to weigh the extent to which 1-4 cigarette per day smokers at baseline are likely to progress to higher levels of smoking versus the extent to which they are likely to stop smoking.

In the study, the authors made such an assessment by examining the smoking behavior of a sample of these smokers who could be re-interviewed 10 years after their initial interview. Based on interviews with about half of the 1-4 cigarette per day smokers, the authors concluded that the two effects basically counteracted each other and that there was therefore no substantial bias in either direction: "In all, we see no reason to believe that the relative risk estimates for light smokers are substantially biased."

The problem is that the sample of subjects who were successfully followed up (only 50% of the entire sample) is much more likely to have substantially lower levels of smoking than the true (entire) sample. We know from prior research of this type that smokers (and particularly heavier smokers) are less likely to be successfully re-interviewed at long-term follow-up than nonsmokers. So it is quite likely that had the full sample been available for re-interview at 10 years (and again at 20 and 30 years), there would have been a much higher extent of smoking progression among 1-4 cigarette per day smokers at baseline compared to smoking cessation among these smokers.

Nevertheless, although I think the risk estimates may be somewhat overestimated, it is unlikely that the true risks are not significantly elevated. So I think the basic study conclusions are still valid.

Now to the American Cancer Society statement. I have to say that I find that statement to be misleading, or possibly inaccurate. The statement suggests, I think, that cutting back on cigarette consumption does not "sharply reduce" the health dangers from smoking.

I don't find that statement to be accurate, and I don't think it is supported by the study findings.

For smokers of 1 pack per day who cut down to 1-4 cigarettes per day, the reduction in the relative risk for death from all causes drops from about 3.3 to about 1.5. For death from lung cancer, it drops from about 30 to about 4. And for all cancers, it drops from about 3 to 1.1 (basically, no increased risk). I do find these reductions in risk to be "sharp" reductions.

In addition, the most dramatic improvement in health to be realized from decreased cigarette consumption is probably improvement (or at least slowing the progression of deterioration) of lung function. Smokers with chronic obstructive lung disease (COPD) who are able to sharply reduce their cigarette consumption are doing themselves a great thing - they may even be saving their lives. Because for smokers with COPD, there is nothing better they can do then to quit smoking or sharply cut down on the amount they smoke.

While I obviously agree with the suggestion that quitting smoking completely is far better than continuing to smoke at lower levels, I just don't think it's accurate to imply that reducing cigarette consumption will not sharply reduce the health dangers from smoking.

The real danger here, however, is not in the possible misrepresentation of the scientific evidence. It is, rather, the possibility that in making this statement, the ACS might actually play some part in convincing smokers who would otherwise continue to cut down on the amount they smoke that it is simply not worth it because they aren't going to see any health improvement anyway. Given the addictive power of nicotine and cigarette smoking, it is far more likely that these discouraged smokers will simply continue smoking at their current amounts then that they will quit smoking entirely. And they may even increase their cigarette consumption, since it may appear from the ACS statement that the amount smoked does not relate directly to disease risk.

This is, in fact, one of the downfalls of public health messages to the public in general - the fact that in trying to emphasize the health dangers of a particular behavior, we often fail to acknowledge that there is a dose-response relationship, and that there is such a thing as risk reduction (reduction in risk associated with decreased levels of the behavior).

To deny that fact may be to deprive many individuals of a golden opportunity to change their behavior and improve their health, if not to save their lives.

Wednesday, September 28, 2005

IN MY VIEW: Americans for Nonsmokers' Rights (ANR) Should Stick to Public Health, Not Political Attacks and Smear Campaigns

As a former Board member of Americans for Nonsmokers' Rights (ANR), it saddens me to see the depths to which the organization has sunk in recent years, and especially in the past weeks, as a group that I thought was committed to integrity in its pursuit of public health goals has increasingly become involved in unwarranted political attacks, inappropriate intervention in litigation affecting the public's interests, and misleading smears against individuals and groups.

To start, I believe that ANR's political attack against the Bush administration and its appointees in the Department of Justice is completely unwarranted. On its web site today, right now, ANR asks if there is a "cancer on the Justice Department" and accuses "White House appointees" of letting the tobacco industry "off the hook." There is a live link to this political attack ad today from ANR's media page. According to ANR: "the Justice Department, led by political appointees with tobacco ties, is attempting to torpedo the case."

Yet in recent weeks, the Department of Justice has:
  • appealed to the Supreme Court the appellate court ruling that disallowed disgorgement of past industry profits as a remedy in the case: if the case is heard and the decision overturned, this would pave the way for possibly billions of dollars in remedies against the industry - it was clearly not letting the tobacco industry "off the hook" to appeal this case;
  • refused to settle the lawsuit, even though Judge Kessler urged both sides to do so (and virtually forced the two sides to sit down together and have at least initial settlement discussions)
  • vigorously defended its proposed monetary remedies;
  • and explained (I think adequately) why the originally proposed $130 billion remedy was abandoned in favor of a more narrowly tailored remedy.
Moreover, I think it has become quite clear, after a careful analysis of the legal briefs filed in the case, that the change in the nature of the DOJ's requested smoking cessation remedy was most likely a strategic and not a political decision.

I didn't think that a political attack on DOJ political appointees was warranted when it was initially issued, and I certainly don't think that such a political attack is warranted now, based on the increasing evidence that the decision to alter the smoking cessation remedy was designed to save the Department from embarrassment (from having the remedy dismissed outright), rather than to save the tobacco industry.

To make matters worse, ANR continues to defend its misleading claim that Associate Attorney General Robert McCallum is a "former tobacco industry lawyer," when the truth (based on the best available evidence) is that McCallum never represented a tobacco client in litigation in his life. McCallum appropriately sought a judgment from the DOJ's Ethics Office about whether he could participate in the tobacco case and he was apparently cleared.

Moreover, the concern in the case as it results to a conflict of interest is actually a concern that McCallum's participation would harm the interests of R.J. Reynolds, the client of his former law firm.

I have no problem with suggesting that an investigation take place into McCallum's participation in the case, but I find it irresponsible and inappropriate for ANR to be calling for "an ethics complaint to be filed with the Federal Bar," when McCallum was cleared to participate in the trial by the DOJ Ethics Office. Perhaps if more information comes out that reveals ethical wrongdoing then it would be appropriate to file a complaint, but based on what ANR knows now, I really don't think they have any business attacking McCallum for politically interfering in the case, misleading the public into thinking that McCallum formerly directly represented tobacco clients, and calling for an ethics complaint to be filed with the Federal Bar.

This goes far beyond what an organization should be doing, I think, when its professed mission is to "protect nonsmokers from secondhand smoke and youth from tobacco addiction" and when that organization is receiving donations presumably to be used for that purpose.

Second, I find ANR's intervention in the DOJ tobacco lawsuit to be inappropriate and irresponsible, as the organization is essentially requesting, in my opinion, that the D.C. District Court ignore the rule of law and force the tobacco companies to pay billions of dollars for public health programs that have little or no relation to the remedies that are permissible under the RICO statute under which the case is being litigated.

I think that if anything, ANR is hurting the case by helping make it clear to Judge Kessler that the case is really not about the application of the RICO law at all, but is instead a public health free-for-all in which anti-smoking organizations are trying to take advantage of this opportunity to extract huge amounts of money for all kinds of highly sought-after public health programs.

In its action alert to its members yesterday, ANR stated that it "is working to make sure that our members' interests are covered in the remedies under discussion by the federal court." But is it really in its members' interest to propose remedies that would actually increase the incentive for tobacco companies to continue their alleged RICO violations?

How could forcing the companies to pay huge fines to support a pubic education and counter-marketing campaign if youth smoking does not drop below 5% possibly create an incentive for them to discontinue marketing to youths, for example? There is no way imaginable, based on my years of expertise in researching the trends in youth smoking and the factors that influence those trends, that this (the reduction of youth smoking prevalence to less than 5%) is going to happen anytime soon. And at any rate, there is no way that this is under the direct control of the tobacco companies.

Thus, faced with the prospect of having to pay the huge fines regardless of what actions they take, there is obviously a strong economic incentive created for the tobacco companies to do everything in their power to recruit and addict as many youth smokers as they can, in order to offset the huge amounts of money they would be paying for these fines (as well as for the smoking cessation programs).

How is it in the interests of ANR's members to devise and promote a scheme by which a strong incentive will be created for tobacco companies to continue to market cigarettes to youth, to addict them, and ultimately, to contribute to many of those individuals' deaths?

The Intervenors, in my opinion, are trying to fit a square peg into a round hole. It just doesn't fit. The RICO law and its interpretation by the D.C. Court of Appeals simply doesn't allow the kind of remedies that ANR and its fellow intervenors are seeking. And by continuing to put forward increasingly convoluted and frivolous (even bizarre) arguments to the Court, I think ANR is actually hurting, not helping to achieve the goals of its members.

Moreover, and perhaps more importantly, I just don't find it to be appropriate for ANR (and its fellow intervenors) to take the intensive step of actually intervening in the case and then for their contribution to the case to be primarily asking the Court to misapply the law. I don't think that demonstrates a whole lot of integrity.

Third, I find ANR's attempts to smear any group or individual that has any connection whatsoever, no matter how remote, to the tobacco industry, to be inappropriate - especially when these claims are often being made in a misleading fashion.

The ANR web site reads like an enemy hit list. There are a host of groups listed under the title of "Front Groups and Allies" - but some of them don't appear to be front groups at all.

The whole hit list-appearing segment of the website is prefaced by the statement that: "It has been a common practice of Big Tobacco to use third parties or to create front groups 'to be out in front fighting' smokefree policies, while the industry remains behind the scenes, protecting its public image."

But as I have begun to actually look at and examine the list, I have found that a number of the groups on the "hit list" are actually not fronts for Big Tobacco at all. They are certainly not organizations that have been created by the industry to allow it to remain behind the scenes while others do the dirty work, but while Big Tobacco calls the shots. Based on my research and experience, I certainly don't think that FORCES, the Competitive Enterprise Institute, or the Cato Institute belong on this list. And I therefore view it as an inappropriate smear campaign to include these groups on a list that implies something that I don't believe is true: namely, that these groups are merely fronts for Big Tobacco - that they don't represent legitimate interests of their members but simply are doing the dirty work, directed by Big Tobacco behind the scenes, so that the industry can remain unobserved.

With respect to FORCES, ANR readily admits that "Internal tobacco industry documents are inconclusive on this point" (of whether FORCES is funded by the tobacco industry). So that means that ANR has no evidence to suggest that FORCES is funded by the tobacco industry. So then why are they listing it as a tobacco industry front group and implying that the group is tobacco-funded? Shouldn't they take FORCES off the list unless and until they can document that the group is indeed tobacco-funded?

It's actually even worse, because ANR goes on to state 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." But since that document exposes that the NSA was created by and almost exclusively funded by the tobacco industry, the statement clearly implies, at least to me, that FORCES was similarly created by and now funded by the tobacco industry. But neither of those implied claims appears to be true.

It is really sad for me to see ANR deteriorate in this way. And it's not just bad strategic planning or poor legal analysis that I'm talking about. It's really the ethical issues that sadden me the most. Because it's troublesome to me to think that I was on the Board of an organization that is now making what I view as unwarranted and misleading personal attacks. I left the Board in the first place because I simply could not go along with that tactic. But it's sad to know that this approach has continued and, I guess, intensified.

Were I still on the Board, I would be urging ANR to stick to public health and refrain from these unwarranted and misleading political attacks and smear campaigns.

But I don't know if things will change because it is starting to look like this mode of operation is the way that the leading organizations in the anti-smoking movement work. Perhaps it's just not in their nature to change.

I guess only time will tell.

Intervenors File Reply to Defendants' Response to their Post-Trial Brief in DOJ Case

On Monday, the six intervening public health groups in the DOJ tobacco case - the Tobacco-Free Action Fund (associated with the Campaign for Tobacco-Free Kids), the American Heart Association, the American Lung Association, the American Cancer Society, Americans for Nonsmokers' Rights, and the National African American Tobacco Prevention Network - filed their reply to the defendants' response to Intervenors' post-trial brief, which argued for expanded remedies in the case, including an industry-funded $130 billion smoking cessation program, a $600 million per year public education campaign, and industry penalties for failing to reduce youth smoking by 42% in 7 years.

In the reply, the Intervenors counter the two primary arguments made by Defendants in asserting that the post-trial brief does not support the requested remedies.

First, the reply responds to the Defendants' argument that Intervenors' have inappropriately applied the RICO statute's allowance of a remedy that would divest the liable party of any interest in any enterprise in order to prevent and restrain future violations.

The Intervenors now argue that "the defendants’ argument cannot be squared with the plain language of the statute, which states that a defendant may be divested of any interest in “any enterprise,” 18 U.S.C. § 1964(c) (emphasis added), not just an interest in “the” enterprise that has committed the unlawful acts." Therefore, the Intervenors argue: "under the plain language of Section 1964(a), this Court may impose remedies that will “divest” the defendants of this interest" (that interest being the future stream of dividends/income derived from addicted smokers).

Second, the reply responds to the Defendants' argument that the proposed monetary remedies are appropriately crafted to prevent and restrain future RICO violations. The Intervenors make 3 basic assertions in support of their proposed remedies:

1. "the benchmarks will provide a specific incentive and a direct indication of whether the defendants are continuing to engage in deceptive practices.

2. "the benchmarks proposed by the Public Health Intervenors – i.e., the points at which the defendants will no longer have to fund these various programs – are inextricably tied to the defendants’ own behavior. Accordingly, because the cost of continuing to fund these programs, and the cost of failing to end deceptive practices that continue to attract young people to smoke, will eventually outweigh the financial benefits that the defendants continue to reap from the concomitantly reduced pool of potential and existing smokers (as the cessation, public education and countermarketing programs prove effective in reducing the number of people who smoke), these remedies will necessarily “prevent and restrain” further such practices."

3. "These remedies will also make it more difficult for the defendants to defraud the target audiences. Once those target audiences receive and digest the countermarketing and public education, the defendants will not be able to mislead them about the related topics anymore. Though these remedies will prevent the defendants from engaging in certain types of future violations because the acts that constitute the violations will no longer be able to accomplish the defendants’ goals."

The Rest of the Story

What has clearly happened here, I believe, is that pressed to the wall by the Defendants' effective argument against the "divestment" rationale for the proposed monetary remedies, the Intervenors have now had to dig even deeper into their wildly exaggerated interpretation of the RICO statute, and have now proposed a new and improved interpretation of the statute, by which it now can be construed as allowing remedies that divest the liable party not only of any interest in the enterprise associated with the RICO violations, but in any enterprise whatsoever.

This, however, is a wild interpretation, because as the Intervenors themselves admit, the purpose of this language was to "address the problem of unorganized crime infiltrating legitimate businesses." I simply don't see any way in which requiring tobacco companies to pay the American Legacy Foundation to run an anti-smoking media campaign or to pay for a national smoking cessation program is fashioned to address the problem of unorganized crime infiltrating legitimate businesses.

That's a huge stretch at best, and a completely frivolous interpretation and application of the statute, at worst.

In addition, this explanation was nowhere to be found in the Intervenors' original post-trial brief. So it is clearly, I think, an interpretation that was developed post-hoc in order to attempt to square the proposed remedy with the requirements of the law. I don't think that dismisses the argument in and of itself, but it certainly exposes that the Intervenors are grasping desperately to try to justify their original argument.

I also find each of the 3 major Intervenors' arguments in support of their repeated assertion that the monetary remedies are narrowly crafted to directly prevent and restrain future RICO violations to be seriously flawed.

First, the benchmarks in no way provide a "direct indication of whether the defendants are continuing to engage in deceptive practices." Take, for example, the 5% benchmark for youth smoking prevalence that must be reached before the Defendants are no longer required to pay for the public education and counter-marketing campaign. It is entirely possible, and I think quite likely, that even if the tobacco companies completely desist from committing any and all of the alleged RICO violations, youth smoking prevalence will not fall to below 5%. There are simply too many other factors that influence youth smoking, and over which the tobacco companies do not have direct control (or over which they do have control but not representing RICO violations).

The prevalence of youth smoking, for example, is largely influenced by adult smoking. It is hard to imagine that adult smoking could remain anywhere close to the levels it is at today but that youth smoking could dramatically drop to unprecedented levels, never seen in more than 50 years. So even if all marketing to youth stopped and all misleading statements about the health dangers of smoking discontinued, adult (including parental) smoking would still strongly influence youth smoking, and I do not think it is reasonable to suggest that youth smoking would fall to below 5%.

It is also possible that I am wrong in my opinion that there is no evidence to believe that the American Legacy Foundation's "truth" campaign will save millions of lives as they have claimed, and that instead, it does have the tremendous effect on youth smoking that Legacy claims. If that's true, then youth smoking could well fall to below 5% over the next 7 years even if the tobacco companies continue to commit the RICO violations alleged by the Department of Justice.

Second, the benchmarks are not "inextricably tied to the defendants’ own behavior." For example, I do not find the benchmark that 90% of the public must be "fully informed of the disease risks and other harms associated with exposure to secondhand smoke" to be inextricably tied to the defendants' behavior. Even if the tobacco companies remained completely silent on the issue of secondhand smoke, I don't think it is plausible to suggest that all of the sudden, 90% of the population would be fully informed of the disease risks associated with secondhand smoke. There are too many sources of information out there which influence public opinion - the tobacco industy's statements are one source, but certainly not the only source.

Moreover, this begs the question of what it means for 90% of the public to be fully informed of the disease risks associated with secondhand smoke. Is breast cancer caused by secondhand smoke? I don't know. There is some evidence to suggest so, but I don't yet find the evidence convincing enough to draw a definitive conclusion. But the California EPA apparently does. Does that mean that I would fall into the segment of the population that is "not fully informed" of the disease risks of secondhand smoke?

And what does "fully informed" mean? Suppose I believe that secondhand smoke causes heart disease, lung cancer, and asthma in nonsmokers. Am I fully informed? Or do I also have to believe that secondhand smoke causes nasal sinus cancer, as concluded by the California EPA? And what about SIDS? Suppose I believe that secondhand smoke causes nasal sinus cancer, but not SIDS? Am I fully informed, or not?

Third, I am not aware of any possible public health campaign that could create a situation by which "Once those target audiences receive and digest the countermarketing and public education, the defendants will not be able to mislead them about the related topics anymore." It is simply impossible. And I find it irrational to argue that the American Legacy Foundation (or any anti-smoking organization) can run a campaign that will completely immunize or inoculate the American public from misleading and deceptive marketing efforts of the tobacco companies. The Intervenors appear to be living in fantasy land.

And anything short of near complete inoculation of the public is going to, unfortunately, increase, not decrease the economic incentives for the tobacco companies to continue the alleged RICO violations. Because as it becomes harder for the companies to deliver their messages, they are going to have to become ever more aggressive and intensive in their campaigns to do so.

Contrary to what the Intervenors argue, I find their monetary remedies to create strong financial incentives for the tobacco companies to continue, if not increase the alleged RICO violations.

The rest of the story suggests that the Intervenors' reply brief has no legal merit. It is based on contorted and distorted interpretations of the RICO statute, implausible assertions, impossible claims, and increasingly wild post-hoc reasoning in a last gasp attempt to salvage a huge pot of money for anti-smoking causes, but with no justification under the law.

Tuesday, September 27, 2005

On FORCES' Third Commandment of Tobacco Control: Public Health Above Liberty

Gian Turci, CEO of FORCES International, in a column about my recent posts, has laid out what he perceives to be the 4 commandments of the tobacco control movement. The third commandment is quite interesting, and I think is worthy of some exploration and discussion:

"Public health is the paramount value of society. All other values - such as liberty, constitutionality, truth, economics, free enterprise, personal responsibility and moral integrity - are absolutely irrelevant and/or have to submit unconditionally. Any dissent from that credo only defines the enemy to be silenced."

The Rest of the Story

Well - it's sad to say, but in many ways, I agree.

The best example of this is the actions of a number of anti-smoking groups, led by the Campaign for Tobacco-Free Kids, the American Cancer Society, and the American Heart Association, to try to achieve public health gains by giving away the rights of American citizens to pursue justice by exercising their legal rights through the court system.

In 1997, these organizations, working as the ENACT coalition, lobbied for federal legislation (known as the global tobacco settlement) that would have achieved a number of anti-smoking goals (including a greatly increased federal cigarette excise tax, huge payments from the tobacco industry, restrictions on cigarette advertising, and FDA regulation of tobacco products).

Just one small problem. These public health gains could only be achieved by sacrificing the legal rights of American citizens to pursue justice in the courts. The legislation would have permanently curtailed the rights of smokers, for example, to meaningfully seek damages for wrongs they may have suffered.

Whether or not one agrees with the argument that smokers were deceived by tobacco industry statements about the safety of its products and that they are entitled to compensatory and punitive damages, it is quite well-established that smokers certainly have the right under our legal system to pursue justice by suing the tobacco companies for damages. Yet the above anti-smoking groups wanted to take away these basic legal rights from American citizens in order to achieve what these organizations viewed as being public health gains.

It was, then, precisely an example of anti-smoking organizations putting public health above all other values, including basic civil liberties and civil rights.

Perhaps the organizations did not view these legal rights as being irrelevant, but they certainly argued that these legal rights would have to submit unconditionally to the organizations' perceived value in achieving the federal tobacco settlement and its public health gains.

Fortunately, there were at least some anti-smoking groups that did not subscribe completely to the 3rd commandment, and they opposed the idea of sacrificing legal rights and civil liberties in order to achieve public health gains. A second coalition - SAVE LIVES - formed to oppose the idea of giving tobacco companies immunity from liability in order to achieve the settlement and its public health gains.

Nowhere is the view that public health concerns trump any and all concerns about liberty and civil rights demonstrated more vividly than in Michael Pertschuk's book: "Smoke in their Eyes: Lessons in Movement Leadership from the Tobacco Wars."

In the book, Pertschuk essentially argues that concerns about infringing upon the legal rights of American citizens to use the court system to pursue justice should not have played a significant role in determining public health groups' support for the global tobacco settlement, because the public health gains that would have accrued from that settlement completely trump concerns about the legal rights of citizens.

Perhaps the most telling quote in the book is from a veteran lobbyist from the American Cancer Society, who said: "I'm getting sick and tired of people who talk about immunity as though it is the only important issue on the table. What bugs me most is that you never hear any of them talking about the public health parts of the legislation and how they could be strengthened. It's just, 'No immunity, no immunity, no immunity.' I'd rather be talking about raising the federal excise tax and pricing cigarettes beyond what has been proposed, strengthening the minors' access provisions and possibly going further on advertising and marketing. These are the things that will save lives and prevent suffering. These are the things I'm prepared to ruin the current deal and any legislation over. Instead, they just prattle on solely about immunity."

This, I believe, quite accurately characterizes the view of the Campaign for Tobacco-Free Kids, ACS, and AHA on this issue. The "public health" parts of the legislation were the paramount concern, and there was little concern that in order to achieve these gains the legal rights of American citizens would have to be taken away.

Looking back on this episode and re-reading the book, I am glad to see that I was in the camp that did place a great weight on liberty and civil rights and did not let the desire for public health gains to trump these critical societal values. According to Pertschuk, I wrote ("indignantly") at the time: "This is an issue of integrity, both of individuals and organizations. It is about making commitments and breaking them. It is about saying one thing and doing another. It is about assuming a mandate beyond that given by the people one represents. It is about selling away the rights of other people to try to gain individual and organizational advancement. ... It is about putting political and organizational advancement and economic gain above principles and values, above individual rights, and above the pursuit of social justice."

Pertschuk describes me (and quotes me) as follows: "Fourth, there were those, like Michael Siegel, who considered fundamentally unethical any trade-off of tort claims for public health laws, no matter how many lives might be spared nor how tenuous and unlikely ever to be realized in the courts: 'The real question is now, and has always been, whether or not it is right for us to sacrifice the legal rights of present and future victims of tobacco products...There is truly a moral issue here. I do not think it is right for us to sacrifice the legal rights of present and future generations of people.'"

I am gratified to see that I had the courage to go up against the Campaign for Tobacco-Free Kids, and that I attempted to bring some consideration of liberty and civil rights issues into the debate over this legislation. (I would also be remiss if I didn't point out that the tort claims were so "tenuous" and "unlikely" to be realized that there are now two pending lawsuit appeals, with punitive damages totaling over $150 billion.)

But what is most interesting in Pertschuk's book is not just the negative way in which he views anyone who would dare suggest that civil liberties and rights play a substantial role in a public health policy debate, but the abusive and downright nasty way in which he characterizes any such person: "Michael Siegel's excommunication as a movement Judas of anyone who would entertain any diminution of any tobacco victim's (largely theoretical) day in court ... poisoned what might otherwise have become a reasoned intramovement debate."

So in other words, bringing civil rights and liberty into the public health debate poisoned it.

Sounds like Gian Turci's 3rd Commandment of the anti-smoking movement was alive and well in 1997.

But the corollary of Turci's 3rd Commandment was also apparently alive and well: "Any dissent from that credo only defines the enemy to be silenced." Because I dissented from the credo that public health gains were paramount to concerns about liberty and individual rights, I needed to be painted as "poisoning" the movement, rather than as making a critically important contribution to the debate.

(Not to mention the fact that the "largely theoretical" day in court of smokers resulted in a $145 billion jury verdict in their favor).

I won't even begin here to get into a discussion of my opinion that the so-called public health gains of the global tobacco settlement were not gains at all. It was largely, I believe, about money.

The issue, for now, is that Gian Turci appears to be right. The anti-smoking movement is largely characterized by groups that place perceived public health gains as paramount to any other societal values, including liberty, justice, and individual rights. And the movement does appear to be characterized by attempting to silence any dissent from that credo.

Unfortunately, I see this as just the beginning of the rest of the story. In many ways, I think the Campaign for Tobacco-Free Kids' and the ACS' and AHA's support of the global tobacco settlement of 1997 marked the beginning of the downfall of the anti-smoking movement. Because it did, in my view, mark the cooptation of the movement by groups that continually place their own perception of (largely theoretical) public health benefits above the rights of citizens, moral integrity, and the rule of law.

Medical Journal Letter Supports UC Academic Council Resolution to Prevent Academic Units from Making Decision on Acceptable Funding

A letter in this week's issue of the American Journal of Respiratory and Critical Care Medicine supports a University of California Academic Council resolution that would prevent any unit of the University from refusing to accept research funding based on the source of the funds (see my previous post for a summary of the issues).

Dr. Robert N. Jones of the Tulane University School of Medicine writes: "If a source of research funding is explicit, if the design of the study is sound and its execution and interpretation honest, and if the investigator is free to publish the results without regard to the interests of the funding organization, the only objection left is that the money was somehow dirty, soiling both investigator and institution. Glantz wants to define "dirty money" in this instance, but the mechanism could forbid support from any source that a majority of faculty can be inflamed against. It is this power that the University of California rightly seeks to curtail, on grounds that it will otherwise inevitably be used against other entities--—not only manufacturers of pharmaceuticals, but of chemicals, foodstuffs, and indeed any product that may arouse the ire of zealots."

The Rest of the Story

Jones' argument is simply not a tenable one. He is basically arguing that no matter how "dirty" a funding source is, there is no justification for an academic unit to refuse to accept funding from that source. Any such decision, Jones reasons, even if based on the sentiment of a majority of faculty members and thus representative of the majority opinion of the body (and not just the zealousness of an individual), simply represents the faculty being "inflamed" and having "axes to grind." Allowing such decisions, Jones argues, would have adverse results.

This argument is not tenable because it makes no sense. Is it really the case that a policy in which a university refuses to accept money from the drug cartel is inappropriate and unjustified? How about refusing to accept money from an organization that supports criminal activity? What about money from an organization that supports genocide? What about an organization that supports the infringement of religious rights? Or one that supports pornography or prostitution? How about organized crime? Would a faculty be described as being "inflamed" about an issue or having an "axe to grind" if it decided to establish a policy of not accepting funding from these sources?

Clearly, the issue is not whether or not a faculty and a school should be able to make decisions about whether to accept funding from a "dirty" source. The issue is simply whether or not Jones considers the tobacco industry to be a "dirty" source or not. He clearly does not, and so he views an academic unit making such a decision as being simply a matter of having an axe to grind.

But it is simply untenable to argue that the reason why an academic unit should be prohibited from refusing to accept money from a particular source is that the very act of doing so is inappropriate. That is absurd. If it were sound reasoning, then even a policy of not accepting funds from an organized prostitution network would be inappropriate.

The supposed issue of whether an academic institution can and should develop policies about appropriate sources of funding is a non-issue. It is ridiculous to assert that there are no instances in which such a policy would be appropriate. The real debate is precisely about what constitutes an appropriate policy and what does not. In other words, what sources of funding are "dirty," or in more appropriate terms - what sources of funding would directly conflict in such a sharp way with an institution's overall mission that to accept funding from such an entity would be utterly inconsistent with the institution's very purpose and function?

Jones apparently does not view tobacco industry money as being "dirty" money, Glantz does. In other words, Jones apparently does not view accepting tobacco money as being in conflict with the mission of an academic institution, while Glantz apparently does. But neither the opinion of Jones or of Glantz is relevant to the issue of whether an academic institution should be able to establish policies regarding acceptable sources of funding in the first place. They can and they must. The issue is simply: "who should make the decision and on what grounds?"

That is where the debate should properly be focused. In other words, the real issue at hand is whether it is more appropriate for the UC Academic Council (at a system-wide level) to make a blanket decision on the acceptability of funding sources that all individual academic units must abide by or whether it is more appropriate for those individual academic units to make their own decisions.

As someone who tends to favor local governance, I think it is far more appropriate for these decisions to be made by the individual academic units. And I think that each unit should be left free to make its own decisions.

The reason why this is so critical is that the mission of each academic unit is not the same. Funding sources that might be consistent with the mission of one school might not be consistent with the mission of another. So while it may not be inappropriate for a UC Business School to accept tobacco industry funding, it could conceivably be quite inappropriate for a UC Public Health School to do so. I'm not making such a contention - I'm only making the point that the decision is best left to the individual school and that I don't see any justification for the UC system to step in at a systemwide level and usurp the ability of individual schools to make this determination for themselves.

Interestingly, I don't see the integrity of the research process as being the primary criterion for decision-making on this issue. After all, one could receive money from a "dirty" source and still structure the grant such that the funding institution has absolutely no control over the research process. In my mind, that would not be sufficient to justify the grant if accepting money from the funding institution was simply inconsistent with the school's mission. In that sense, I think Jones does make a good point in focusing the debate on the appropriateness of the funding source, rather than simply on the issue of research integrity.

The rest of the story suggests that the real issue in the debate over "academic freedom" at the University of California is really not properly a debate over the appropriateness of accepting tobacco money or of the appropriateness of an academic body setting policies about acceptable sources of outside funding. Instead, the debate is really about who should set those policies and what the considerations should be that factor into those decisions.

Thursday, September 22, 2005

Defendants File Response to Intervenors' Post-Trial Brief in DOJ Tobacco Case

On September 14, the tobacco company defendants in the DOJ tobacco case filed a response to the Intervenors' post-trial brief which had urged the Court to extend the government's proposed smoking cessation remedy, public education and counter-marketing remedy, and youth smoking reduction target remedy. The Intervenors consist of the Tobacco-Free Action Fund (associated with the Campaign for Tobacco-Free Kids), the American Heart Association, the American Lung Association, the American Cancer Society, Americans for Nonsmokers' Rights, and the National African American Tobacco Prevention Network.

The response essentially asks the Court to disregard the Intervenors' brief because it is "virtually useless" and makes no "meaningful contribution to the necessary legal analysis."

The Defendants argue that the brief offers no meaningful legal analysis because it fails to offer any reasoning to support the assertion that the proposed remedies will "prevent and restrain" the alleged RICO violations, as required by 18 U.S.C. section 1964(a) (the civil remedies provision of the RICO statute).

The brief provides two major arguments, which address each of the major arguments made by the Intervenors in support of their proposed remedies' appropriateness under the RICO statute as interpreted by the D.C. Court of Appeals.

First, the Defendants argue that the idea that the smoking cessation, counter-marketing, and youth smoking reduction remedies are necessary in order to divest the tobacco companies of their interest in the RICO enterprise is "frivolous" and "bizarre." How could the individual smokers who were the alleged victims of the fraud constitute the enterprise? And how could forcing the tobacco companies to pay for smoking cessation programs or other programs to encourage smokers to quit constitute divestiture of the defendants' interest in the enterprise? After all, the government's theory in the case does not suggest that individual smokers are somehow members of the enterprise. And even if this bizarre smokers-as-enterprise theory were tenable, how would reducing the number of smokers prevent and restrain future RICO violations?

Second, the Defendants argue that the Intervenors fail to demonstrate (actually, that they provide no viable argument) that the proposed remedies will prevent and restrain RICO violations.

The Intervenors assert that the 3 proposed monetary remedies will prevent and restrain RICO violations by reducing the pool of smokers or the pool of youths to whom fraudulent marketing practices could be directed and help inoculate these groups against such practices, thus making it less profitable for the companies to commit RICO violations and ultimately, serving as a deterrent to their interest in committing these violations.

However, the Defendants point out that the D.C. Court of Appeals has ruled that simple deterrence is not enough to justify a remedy under RICO's "prevent and restrain" requirement, citing Judge Williams' concurring opinion that: "pure deterrence [is] an impermissible objective of orders under [section] 1964(a)". Defendants assert that the appellate court decision makes it clear that allowable remedies must "actually stop future violations from occurring, not merely mitigate their effects or theoretically make them less profitable by shrinking the size of a defendants' business."

The Rest of the Story

With regards to the proposed monetary remedies in this case, I find the Defendants' arguments to be entirely compelling.

First, with respect to the Intervenors' assertion that programs to encourage smoking cessation and prevent smoking initiation are statutorily appropriate because they would divest the companies of their interest in the RICO enterprise, I agree with the Defendants that this is both a bizarre and a frivolous argument (although I chose to describe it as a "rather wild" interpretation of the statute):

"This is a rather wild interpretation of the statute, which was clearly designed to prevent future RICO violations by breaking up the criminal enterprise - i.e., the business ventures, structures, and relationships - that would allow the violations to continue. As the intervenors themselves state: 'the civil remedies must be employed as a means of requiring individuals who have used racketeering methods to acquire or operate legitimate businesses to divest themselves of their ill-gotten interests and to refrain from entering the same lines of business.' This is a far cry from the purpose to which the intervenors would put the civil remedies provision of RICO. Running smoking cessation programs does not represent any direct breakup of any business enterprise. It does not force the defendants to refrain from entering the same lines of business."

Second, with regard to the Intervenors' assertion that the proposed monetary remedies meet the "prevent and restrain" requirements of the RICO statute because they will create an economic incentive for tobacco companies not to commit future RICO violations, I think one only need look as far as the appellate court decision itself to see that this argument lacks merit.

In fact, Judge Williams actually jokes about the argument that fashioning a remedy that deters illegal activity under RICO by imposing financial disincentives would meaningfully prevent and restrain future violations, given the other more direct remedies available under the statute:

"I find it hard to imagine a waffling villain—already in court for RICO violations—saying to himself: 'Well, my chances of escaping § 1963(a) forfeiture and imprisonment because of the statute of limitations and the burden of proof, and of escaping treble damages under § 1964(c), and contempt penalties for violating the court’s orders, still leave RICO violations attractive on a net basis; but that implied disgorgement under § 1964(a)—wow! Too much. It tilts me over the line.'"

Williams makes it clear that "the court must try to draw lines between equitable remedies that merely “hurt” the defendant and ones that have a genuine tendency to “prevent and restrain” his future violations."

And Judge Sentelle also makes it clear that a general deterrent effect of a proposed RICO remedy is not sufficient to meet the statutory requirement that the remedy prevent and restrain future violations: "It is true, as the Government points out, that disgorgement may act to “prevent and restrain” future violations by general deterrence insofar as it makes RICO violations unprofitable. However, as the Second Circuit also observed, this argument goes too far. “If this were adequate justification, the phrase ‘prevent and restrain’ would read ‘prevent, restrain, and discourage,’ and would allow any remedy that inflicts pain.”

While these arguments are sufficient to dismiss the Intervenors' brief, the Defendants make two additional critical arguments.

First, they point out that by mucking with the government's proposed remedies at this late date (after all the testimony and evidence in the trial has been presented), there are really no sufficient grounds on which the Court can make a credible judgment with regard to the added components of the proposed smoking cessation, public education, and youth smoking reduction programs. There has not been testimony on this aspect of the case and the defendants have not been given an opportunity to respond. In other words, there has been no litigation of these issues.

The specific issues added by the Intervenors include:
  • a requirement that the smoking cessation program continue until less than 10% of smokers report that they want or intend to quit;
  • a requirement that the public education and counter-marketing program continue until youth tobacco use declines to 5%;
  • a requirement that the public education and counter-marketing program continue until less than 10% of the public fails to "fully understand the comparative health risks of different health products"; and
  • a requirement that the public education and counter-marketing program continue until less than 10% of the public fails to be "fully informed of the disease risks and other harms associated with exposure to secondhand smoke."
However, the Intervenors provided no evidence to explain or support the need for a 10% threshold for smokers wanting to quit, a youth smoking prevalence target of 5%, and so on. And they have introduced a complex issue of how to measure "fully understand the comparative health risks...", be "fully informed of the disease risks...", and "want or intend to quit," without any opportunity for litigation of this issue.

I myself, as an experienced practitioner in the tobacco control field, have no idea what it means to say that a person "fully understands" the comparative health risks of different tobacco products or that a person is "fully informed" of the disease risks associated with secondhand smoke. And I have no idea how one would define or measure that. It is certainly possible that a method could be discussed and worked out, but it would certainly warrant some evidence and some testimony for the Court to even begin to grapple with the issue (even assuming that the remedy was otherwise appropriate and permissible).

The second additional critical argument made by the Defendants is that by mucking with the government's proposed remedies, the Intervenors have now fashioned remedies that require the defendants to do something beyond which they have control.

For example, it is not clear to me that by ceasing the alleged RICO violations, the tobacco companies could achieve the result of fewer than 10% of smokers saying that they want to quit. If anything, if those alleged violations ceased, I would think that the proportion of smokers who stated they want to quit would go up substantially because perhaps there would be less deception about the potential safety of smoking light or low-yield products!

And it is even less clear that a counter-marketing campaign could lower youth smoking levels to below 5%. That is certainly not under the defendants' control. There are simply too many other factors that influence youth smoking to assert that the tobacco companies single-handedly have the ability, through funding a counter-marketing campaign, to lower youth smoking prevalence to below 5%.

Finally, I would add one additional argument that would render the proposed monetary remedies unallowable even if a deterrent effect were ruled to be consistent with the "prevent and restrain" requirement. I do not believe that proposed smoking cessation, counter-marketing, and youth smoking reduction remedies would in fact create an economic incentive to deter future RICO violatioins. In fact, I think they would create a strong incentive for such violations to continue, especially under the scheme concocted by the Intervenors (whereby payments for these programs would continue essentially regardless of whether the companies were actually continuing to commit RICO violations or not).

The rest of the story suggests that the tobacco company defendants in the DOJ case have offered an entirely compelling set of arguments for why the Intervenors' post-trial brief has little if any legal merit and why it should therefore be disregarded.

I think the Defendants are right on the mark when they conclude that: "At bottom, the Intervenors’ brief — like the very fact of their intervention — simply underscores the extent to which this civil RICO lawsuit has degenerated into a public policy free-for-all, with segments of the public health community vying for this Court’s attention and lobbying for adoption of their favorite 'anti-smoking' wish-lists. But this lawsuit is not a seminar or public debate on the best ways to reduce smoking; it is a legal proceeding in which the Court’s jurisdiction is sharply limited to taking actions necessary to 'prevent and restrain' RICO violations."

In that sense, I think the public health community will be lucky if the Intervenors' brief is disregarded. Because if it is regarded (even if dismissed), it is going to help demonstrate to the Court what is really going on in this case. And that could be a fatal blow not only to the inappropriate monetary remedies, but to the entire house of cards.

Wednesday, September 21, 2005

More Personal Attacks by Anti-Smoking Advocates: Idea that FORCES Represents Legitimate Interests of its Members Seems Too Much to Take

In response to my post of July 25, welcoming FORCES readers to my site and suggesting that its members are not merely tobacco industry fronts, but that they largely represent their own legitimate interests, several anti-smoking advocates have unleashed yet another set of personal attacks.

This time, the recipient of the attacks was not a tobacco industry-funded or pro-smoking advocate, but instead, was ...

A number of anti-smoking advocates questioned my funding source, suggested that the administration of Boston University be asked to investigate my funding source, suggested that the administration of Boston University should intervene to presumably stop what I am doing, once again accused Martha Perske of being a tobacco "industry mole," and accused me of being funded by the Republican party.

They also reiterated the charges that FORCES is merely a tobacco industry front group and that they are lying about where they get their funding.

The Rest of the Story

Clearly, my suggestion that FORCES is not merely a tobacco industry front group but that it truly does represent legitimate interests of its members was too much for a number of anti-smoking advocates to take. But instead of attempting to refute my arguments, they resorted to issuing personal attacks and unfounded accusations.

What surprised me about this is not the attacks, but the fact that I only really said two things in that post which prompted such a vigorous response.

First, I welcomed readers from FORCES, as well as from Reason Online's Hit & Run blog and the Smoker's Club. This seems perfectly appropriate, since I knew that readers from these sites were going to be visiting my blog, as several articles on my blog were linked to from these sites.

Second, I made the daring suggestion that FORCES was not merely a tobacco industry front group, but that its members generally represented their own legitimate interests and are not merely being used by the industry to promote the industry's own goals.

In fact, the evidence demonstrates that FORCES was established independent of the tobacco industry. A 1999 Philip Morris document establishes that the company was not funding FORCES at the time and it was an investigation of pro-smoking groups that brought FORCES to its attention. At least at the time, Philip Morris itself acknowledged that FORCES "does not accept tobacco industry funding."

The only evidence presented to suggest any funding at all from the tobacco industry to FORCES was made by an anonymous commenter, who claimed that FORCES received tobacco industry funding to run an ad campaign on a California ballot initiative. Let's stipulate that's true. It certainly doesn't make FORCES a tobacco industry front group. And it certainly doesn't suggest that its members are merely tobacco industry "moles" who are merely doing the industry's bidding for it and not truly representing their own interests.

But the strongest evidence that FORCES is not a tobacco industry front group is FORCES itself. Its position is that: "The Master Settlement Agreement is a massively corrupt price-fixing scheme contrived between forty-six states and the major American cigarette manufacturers. As this latest challenge states, upon signing the MSA, 'the States became business partners in establishing one of the most effective and destructive cartels in the history of the Nation.' If there is any justice left in the USA these suits shall prevail. The happiest outcome of all would be total bankruptcy of the major manufacturers to the benefit of fair dealers and the public. We have a bottle of Dom Perignon cooling for the day Philip Morris and the rest bite the dust. Big Tobacco's ignominious demise is a dream that really could come true. ... It's going to take years. That's okay. Smokers and all seekers of justice are watching, and strategizing, and we're ready for the long haul."

I hardly think a Big Tobacco front group would call for the demise of Big Tobacco (much less for its ignominious demise).

The web site of Americans for Nonsmokers' Rights still accuses FORCES of being a Big Tobacco front and based on responses I have received on my post, I seem to be the only public health advocate around who sees that the members of FORCES are largely representing their own concerns about government intrusion into their lives and not primarily trying to protect the interests of the large tobacco companies. (Yes - these interests do often coincide but that does not de-legitimize the interests of FORCES members.)

In fact, most of the FORCES members that I know would love nothing other than to see Big Tobacco go under so that some more vigorous price competition can finally enter the market and maybe they won't have to spend so much money on cigarettes.

I think that until anti-smoking advocates start listening to the arguments that smokers' groups are making instead of attacking the individuals who are making these arguments, they are going to remain blind to many of the reasons why it is becoming increasingly difficult to get tobacco control and its funding on the public and political agenda.

While I see no need to defend myself (those who know me well are still laughing at the suggestion that I am being funded by the Republican party), I refuse to allow Martha Perske to be attacked publicly in a defamatory manner.

So let me state that Martha Perske is a remarkable, talented (truly gifted) individual who has tremendous integrity and has made quite incredible contributions to the public's welfare and that she is in no way representing anything other than her own personal interests. She is an independent, private citizen who, far from being on the tobacco industry dole, has put her own time and effort into what she believes is the promotion of societal policy that reflects scientific evidence.

While our interpretation of that scientific evidence has differed, I have the utmost respect for Martha Perske and I think that we have far more common ground than we have differences. What I hope I will be able to one day say is that I share Martha's ability to look into the eyes and heart of each and every individual and see the beauty of that person. So I am happy to be able to now call Martha a friend.

While we in tobacco control talk all the time about the tobacco industry's deception and lies and the impact it has had on the public, I am beginning to see that we seem to have our own blinders on and our inability to look past the dogma we have been exposed to is starting to impair our own ability to see the truth for what it is. I think our view of reality has been severely tainted by the narrow, prescriptive, dogmatic perspective with which we view the world.

If this blog can play any role in helping to broaden that perspective, then I will consider it to have been a success.

Tobacco Control Legal Consortium Files Amicus Brief in DOJ Tobacco Case

The Tobacco Control Legal Consortium, a "national network supporting tobacco control policy change by giving advocates better access to legal expertise," filed an amicus brief in the DOJ tobacco case on August 24. In the brief, the Consortium requests that the Court expand and enhance a number of remedies that were requested by the Department of Justice.

The brief asks the Court to:
  • require Defendants to disclose all documents produced in foreign litigation, not just documents from the U.S., arguing that "there is no guarantee that litigation in the U.S. will continue to produce documents useful for preventing future RICO violations or other public health or scholarly purposes";
  • require Defendants to disclose, in a timely manner, their current marketing plans to a counter-marketing entity (such as the American Legacy Foundation), arguing that: "If the Counter-Marketing Entity could gain real-time access to this information directly from the Defendants, counter-marketing would be more effective";
  • require Defendants to disclose any funding of outside organizations, arguing that "disclosure of their funding and support of outside groups will enable the IO [an independent, court-appointed tobacco industry monitor] and public health groups to detect any efforts by Defendants to undermine future tobacco control efforts by using third parties to advance their interests surreptitiously in order to do something that they themselves would be prohibited from doing";
  • add to the list of health descriptors that tobacco companies may not use the following: "low tar, ultra, smooth, slim, super slim, free, additive-free, no additives, medium, low nicotine, reduced nicotine, and ultima" and make it clear that the companies cannot use numbers, letters, or color variations or shading to indicate that one product may be less dangerous than another;
  • prohibit all brand name sponsorships that result in youth exposure, rather than just motor sports sponsorships;
  • prohibit the Defendants from collecting data from youth regarding smoking and health; and
  • direct the independent industry monitor to consult with experts to determine whether graphic imagery should accompany corrective statements required of the tobacco companies.
The Rest of the Story

Compared to the amicus briefs submitted by the Citizens' Commission to Protect the Truth, the Campaign for Tobacco-Free Kids, American Cancer Society, American Lung Association, American Heart Association, and Americans for Nonsmokers' Rights, the Lung Cancer Alliance, and the attorneys general of 22 states, this brief is a breath of fresh air.

It is truly the first amicus brief I have reviewed that has any direct relevance to the case.

The brief actually considers what remedies might be effective in directly restraining future RICO violations by tobacco companies. For example, it directly addresses the issue of what requirements the Court should impose on the companies to prevent them from making misleading health claims in the future about the potential health benefits of using various tobacco products. The Consortium's suggestion that additional health descriptors be added to the list seems quite reasonable, since those terms could be expected to be potentially misleading to consumers.

In addition, the Consortium's suggestion that cigarette companies not be allowed to use numbers, color variations, or different shading to indicate various levels of implied safety also seems reasonable. Even if the terms "light" and "ultra-light" are prohibited, the companies could still get around this by using different colors to indicate the same differentiation of products. In fact, most consumers probably already can identify the differences between regular, light, and ultra-light variations of a brand based on color patterns on the cigarette packs.

If the Court does decide to restrict tobacco sponsorships to which youths might be exposed, then it certainly doesn't make any sense to exempt non-motor-sports sponsorships, so this enhancement of DOJ's proposed remedy also seems reasonable.

It also seems reasonable to suggest that Defendants be prohibited from collecting data from youths to be used for marketing purposes. While the brief's request for an all-out proscription of any data collection from youths does seem a bit broad, I cannot immediately think of any reason why the companies would need to collect such data if youths are not part of their target audience.

The requirement that tobacco companies disclose their marketing plans seems reasonable, since disclosure of this information could be viewed as a critical component of enforcing a prohibition on tobacco companies lying about marketing to youths. However, I do not agree with the reasoning given for such a remedy. The brief suggests that this remedy is necessary in order to allow the counter-marketing entity (such as the American Legacy Foundation) to effectively counter tobacco marketing. However, this does not seem to address the need to prevent any particular RICO violation. A counter-marketing campaign seems like a remedy designed to redress the effects of RICO violations, not to prevent future violations, so I do not follow the reasoning being provided here. Nevertheless, the ultimate remedy requested - disclosure of marketing plans - seems to be a potentially effective method to enforce a prohibition on the tobacco companies lying about marketing to youths in the future.

The two suggested remedies which I think are not adequately justified in the brief are the request for disclosure of tobacco funding of all organizations and the added requirements on corrective statements.

Unless I'm missing something, the funding of organizations to "undermine tobacco control efforts" (e.g., by opposing cigarette taxes, smoking restrictions, etc.) does not constitute a RICO violation. Certainly, establishing front groups or paying scientists to distort the truth as part of a scheme to mislead the public about the health effects of smoking is an alleged RICO violation. But a requirement to disclose all industry funding of organizations seems far too broad to address this more narrow issue. For example, the tobacco companies fund a large number of philanthropic causes. It's not clear to me why requiring them to disclose that they gave money to support Hurricane Katrina relief, for example, is necessary to prevent and restrain future RICO violations.

Finally, it's not clear to me that corrective statements will effectively prevent and restrain future RICO violations, since they seem more directly intended to redress the effects of such violations. Thus, it's not clear to me that adding more requirements on such corrective statements is a justified remedy. The danger is that if companies are required to make such corrective statements, then it might actually create an incentive for them to further their RICO violations in order to counteract the effects of their own statements. In addition, I think there are issues regarding potential restrictions on free speech (First Amendment issues) as well as issues regarding usurpation of federal executive and legislative branch authority to regulate the required health warnings on cigarettes that this remedy raises.

I will not add a comment on the foreign document disclosure requirement, since I'm simply not familiar enough with any foreign litigation to comment on this issue. However, I will mention that I don't think any "public health or scholarly" uses of the documents play any role in the Court's consideration of the merits of this remedy. The only consideration is whether foreign document disclosure is necessary to, and effective at, preventing and restraining future RICO violations.

All in all, the Tobacco Control Legal Consortium's amicus brief is truly a breath of fresh air because although I do not find all of its arguments for enhanced remedies to be solid, it does directly address the issue of helping the Court to fashion effective remedies to directly prevent and restrain future tobacco company RICO violations.

At very least, it demonstrates what a responsible amicus brief submitted in the public's interest might look like, and it illustrates just how inappropriate are the interventions on the part of the other health organizations in the case.

Of course, the brief does open by supporting the intervenors' request for a $130 billion smoking cessation remedy and a $600 million public education remedy which I believe have no legal merit. However, I'm so used to seeing greed-ridden briefs that ask the Court to ignore or misapply the law in order to fund public health causes that I'm not going to ask for perfection here. The Consortium is to be applauded for making a sincere attempt to help the Court fashion appropriate remedies under the law.

Monday, September 19, 2005

Attorneys General Intervene in DOJ Tobacco Case, Ask for Bailout

In a September 12 amicus brief submitted by the attorneys general of 22 states, these states have asked the D.C. Court hearing the DOJ's tobacco lawsuit to direct the tobacco companies to pay for the continued funding of the American Legacy Foundation's "truth" campaign to combat youth smoking, should the Court find the companies liable for RICO violations.

The AG's preface their argument by stating that: "an effective public education program would be appropriate 'to prevent and restrain violations' of RICO in the future."

They then argue that: "there are other forms of advertising and promotion, not specifically addressed in the MSA, that result in large and continuing exposure of youth to cigarette advertising. A substantial and well-funded public education program like that carried out by the Foundation is needed to counteract the effects of that exposure, particularly in light of the fact that many state legislatures have significantly reduced funding for state smoking-prevention programs."

The AG's also argue that funding to continue Legacy's public education program is necessary because of the "sunset" clause in the MSA, which ends payments for this program if the market share of non-participating manufacturers exceeds 0.95% (which it has).

The Rest of the Story

This amicus brief appears to have no legal merit, at least regarding the public education remedy (the brief also addresses the document disclosure remedy, which I will not discuss here).

The brief has no legal merit because although it prefaces its argument for a public education remedy by stating that such a program would prevent and restrain future RICO violations, it provides no argument for how such a program would do that. Instead, it argues that such a program is necessary because it is needed in order to counteract the effects of continued tobacco marketing to youths. But counteracting the effects of RICO violations is very different than preventing or restraining such violations, and it is something that the D.C. Court of Appeals has precluded from justifying a civil remedy under RICO.

So what does this brief really amount to if it isn't providing any credible legal argument?

What is amounts to is an attempt by the state attorneys general to bail themselves out of a stupid decision that they made in signing the Master Settlement Agreement. They signed a contract in 1998 that clearly intended to abolish the anti-smoking public education and counter-marketing campaign if the market share of non-participating manufacturers reached 1% or greater.

There was nothing hidden in the MSA - it was clearly stated and the AG's were presumably aware of the provision before they signed the contract. They really have no one to blame other than themselves for signing such a bad contract (bad in terms of serving the public's interest). Given the role of generic, discount, and deep discount cigarettes in the overall market, it should have been anticipated that the market share of non-participating manufacturers would soon exceed 1%.

Now, the AG's are basically asking the court to bail them out of this mess by restoring funding for the "truth" campaign. I suppose that would be OK, except that they are asking the court to misapply the law in order to do that.

The AG's are also asking the court to bail out their states for failing to allocate money from the MSA payments for tobacco prevention programs. They actually argue to Judge Kessler that because the states have failed to allocate sufficient funding for such programs, she should require the tobacco companies to fund such programs. Why should the court serve the function of redressing the effects of legislative funding decisions, even if they did represent inappropriate budget allocation priorities?

This case is certainly not about redressing the actions of legislators in making funding decisions; nor is it about redressing the mistake that the AG's made in signing a contract that essentially guaranteed that funding for the Legacy Foundation's public education campaign would come to an end in the not-so-distant future.

Given the D.C. Court of Appeals' decision, this case is not even about redressing the specific effects of tobacco company RICO violations. The remedies aspect of the case is specifically about asking the court to impose injunctive relief that will effectively prevent and restrain future RICO violations.

The rest of the story suggests that the 22 intervening states, in arguing for continued funding for Legacy's "truth" campaign, are simply trying to bail themselves and their states out of a mess that they themselves created. And they are misusing the law in order to do so.

Friday, September 16, 2005

New Study Finds Popular Kids More Likely to Start Smoking

A study published in the October issue of Journal of Adolescent Health reports that kids who are more popular are more likely to initiate smoking (see: Valente TW, Unger JB, Johnson CA. Do popular students smoke? The association between popularity and smoking among middle school students. Journal of Adolescent Health. Vol. 37, No. 4, October 2005).

The study followed 1,486 sixth-graders for one year and found that students who were more popular (defined as being named often as a friend by other students in their class) were more likely to experiment with smoking and more likely to become susceptible to smoking (defined as not ruling out smoking in the future) when re-interviewed as seventh-graders.

The study suggests an explanation for this finding: "Researchers theorize that popular sixth-graders may believe that being among the first to experiment with smoking will help them stay popular. Popular students try to set trends without deviating very far from the norms of the community, according to the study."

The study also found that isolated students (those who no other students in the class listed as being a friend of theirs) were also more likely to start smoking.

The study explains this finding: "The authors surmise that teen-agers who are isolated in the classroom may be connected to older friends who are more likely to smoke. These friends provide role models for smoking."

The Rest of the Story

The interpretation of these results suggested in the press release seems to lead to the conclusion that one way to prevent youth smoking experimentation is to encourage kids not to become popular (i.e., not to have too many friends). However, I don't think parents who don't want their kids to smoke need to start advising them to avoid having too many friends.

While one possible interpretation of these results is that being popular is an independent risk factor for smoking experimentation, there is another possible explanation. It is possible that the number of classmates who list a kid as being a friend is not so much a measure of popularity as it is of the type of social (peer) network or group of which a kid is a part. And the type of peer group that kids associate with may actually be the causative factor in increasing susceptibility to smoking and increasing smoking experimentation risk.

Kids who were defined as isolated may be part of a distinctive peer group that is itself quite isolated. As suggested in the study, these kids may be prone to smoking because of their increased connection to older kids who smoke.

But isn't it likely that kids who were defined as popular because many other kids named them as friends are also part of a distinctive peer group? This group may be characterized by a greater need to be perceived as being part of the "in" group at school, and therefore may have self-identity and self-esteem issues that would make its members more susceptible to the influences of parental, peer, and societal influences to smoke.

From my experience with this age group, the kids who tend to hang out with a very large peer group are more susceptible to smoking not because they are popular, but because the social group they hang with tends to itself be more susceptible to societal influences, especially those from advertising and entertainment media, and these groups likely have greater exposure to older kids - role models - who smoke.

So I think a reasonable interpretation of the findings of this study is not that popularity increases smoking risk, but that the number of classmates who report a kids as being a friend of theirs is an indication of the type of social group that a child is a part of, and it is the nature of these social groups that predispose to smoking.

I think that kids who have a higher level of self-esteem and a more established self-identity that they are comfortable with see less of a need to surround themselves in a larger peer group, and are also less likely to become completely isolated. This would explain why it is precisely this group, whose members have a few friends in their class, that is at lowest risk for smoking initiation and smoking susceptibility.

So I don't think parents need encourage their children not to make friends. What I think this study really points to is the role of peer groups in the smoking initiation process and the role of self-esteem and self-image issues in the choice of peer groups. And that is something that parents, schools, and communities can and should do something about.