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.

No comments: