Sunday, September 11, 2005

Department of Justice's Reduced Smoking Cessation Remedy Called a "Tragedy"

In a press release that accompanied a commentary published in this week's New England Journal of Medicine, the article's lead author called the Department of Justice's decision to ask for a reduced $10 billion smoking cessation remedy instead of the $130 billion he had recommended a tragedy.

According to the release: “Spending $5 billion a year on tobacco cessation for 25 years would profoundly improve the health of Americans,” said Dr. Michael Fiore, author of the article and the government’s expert tobacco-cessation witness in the Department of Justice trial. “This is why it is such a tragedy that the Justice Department backed away from their original cessation remedy. Can you imagine what would happen if, as we projected with this plan, one million additional smokers quit each year – 33 million over time?”

The commentary itself largely reiterates the claims made by a number of anti-smoking groups that political interference by the Bush Administration led to the change in the requested smoking cessation remedy from $130 billion to $10 billion. It suggests that the lawsuit became "mired in controversy" because of the DOJ's failure to request the $130 billion and that this action by DOJ will result in "more latitude for the tobacco companies, more new smokers, and more smoking-related illness and death."

The commentary concludes by suggesting that DOJ's failure to adequately explain the change in its smoking cessation remedy resulted in attention being focused on political influence within the Department rather than on the facts of the case: "If there is a valid reason for the abandonment of the $130 billion smoking-cessation remedy, the Justice Department has failed to articulate it in a convincing manner. As a result, attention has focused on political influence within the department rather than on the compelling portrayal of tobacco-industry crimes presented by the tobacco-team attorneys."

The Rest of the Story

While the desire of tobacco control researchers to want to find a way to fund a program to promote smoking cessation is admirable, I do not find it particularly appropriate to make public accusations that essentially amount to unsubstantiated claims of political interference, especially when I think the best information available at this time suggests that the decisions regarding the requested smoking cessation remedy were strategic ones related to how best to address the D.C. Court of Appeals ruling that disallowed backwards-looking remedies, and when an analysis of the legal issues in the case demonstrates that the change in remedies actually had no negative impact on the strength of the case and its chances of success.

It is hardly a tragedy that the Department of Justice replaced a $130 billion remedy that is inconsistent with what the D.C. Court of Appeals has stated is permissible under RICO and has no chance of being upheld with a $10 billion remedy that is inconsistent with what the D.C. Court of Appeals has stated is permissible under RICO and has no chance of being upheld.

And that decision hardly will result in "more latitude for the tobacco companies, more new smokers, and more smoking-related illness and death," since the $130 billion remedy would never have seen the light of day.

If anything, I think it is the over-zealous and seemingly greedy obsession, on the part of anti-smoking organizations, with huge monetary remedies that are inconsistent with the law that is going to hurt the case more than anything else, because it provides strong evidence to Judge Kessler to support the tobacco industry's assertion that "the Government has repeatedly invoked the mantra of 'improving public health' in an extralegal attempt to justify a series of multi-billion-dollar remedies—including a national cessation program ... that in no way meet the D.C. Circuit’s standard. This naked overture to use the judicial process in service of public health policy both corrodes the judicial function and openly flouts RICO law. It compromises the proper function of the courts because 40 years of history since 1964 has established the executive branch’s own dominant and continuing role as the architect of tobacco control."

I also don't think it is accurate to blame the DOJ's more narrow tailoring of its smoking cessation remedy as the reason for the case being "mired" in controversy. There really wasn't any controversy. There was simply a strategic decision to try to bring the remedies more in line with the D.C. Court of Appeals decision. The controversy was created by anti-smoking groups and politicians, not by the Department of Justice.

While the press release's and commentary's complaint about the reduction in the proposed smoking cessation program funding amount seems relatively benign and perhaps just suggests a failure to carefully consider the actual legal issues in the case rather than just the public policy concerns, the public accusation of political wrongdoing that the press release and commentary make by insinuating that political interference led to the change in remedy rather than a strategic legal concern is hardly benign.

The New England Journal of Medicine is supposed to be a scientific journal, and while politics clearly interacts with science, I do not view this as the appropriate place to make political accusations that are not documented, especially when they fly in the face of common sense (i.e., how could reducing a remedy that didn't have a chance of being upheld constitute a "tragic" weakening of the case?)

I think anti-smoking groups would better serve the public if they paid a little more attention to the law and the legal issues that govern the case, and a little less time jumping to make political accusations and attacks before they really have any clear understanding or documentation of the facts.

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