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.
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.
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