Thursday, August 17, 2006

Campaign for Tobacco-Free Kids Decries Lack of Money for Anti-Smoking Programs; Still Doesn't Seem to Get It

In a press release issued in response to the D.C. District Court's ruling in the DOJ tobacco case, the Campaign for Tobacco-Free Kids bemoans the failure of the Court to impose any of the monetary remedies, which would have provided anti-smoking groups with millions of dollars to run their cessation, education, and counter-advertising programs. The Campaign states that the remedies "fail to protect" the "American people," and therefore "must be appealed."

According to the press release: "We are deeply disappointed, however, that Judge Gladys Kessler felt constrained in the remedies she could impose by misguided appellate court rulings. Given the overwhelming scope of the industry’s wrongdoing found by the judge, much of which continues today, the Bush Administration has an obligation to appeal the remedies in this case to protect the American people and especially our children."

The Rest of the Story

You can just feel the air being let out of the Campaign's tires in that press release as they watch the opportunity to get their hands on billions of dollars go sailing away into the distance. It really does appear to be all about the money, and little about the law, for this group.

So the remedies fail to protect the American people. I suppose that's true. But the purpose of the remedies is not to "protect the American people." The purpose of the remedies is to prevent and restrain future RICO violations as appropriate under the law. A failure to protect the American people from the harms of smoking is not grounds for appeal of the case.

What would be grounds for appeal is if the appellate court misinterpreted the RICO statute's civil remedies provisions by ruling that remedies must be (as the statute states) designed to prevent and restrain future RICO violations, rather than remedy the effects of past violations. Unless the Campaign can provide some solid reasoning for how the appellate court was wrong about what seems to be quite clear and straightforward language in the RICO statute, then it has little credibility in issuing propaganda like this.

The practice of tobacco control is not all about trying to extract money from the industry by urging courts to alter the interpretation of the nation's laws to unfairly deprive cigarette companies of the benefits of the law's protections in order to serve the public's health, no matter how noble that public health cause may be.

As tobacco control and public health practitioners, we must work within the law. That's something which the Campaign, along with the other intervenors in the case, seem to fail to realize.

I have no problem with the government appealing the appellate court's ruling to the U.S. Supreme Court. If I were DOJ, I might well appeal it. But the grounds for appeal is not that the remedy does not provide enough money to anti-smoking groups or that it does not provide the $130 billion that a certain government witness said was necessary or that it does not adequately protect the public. The grounds for appeal is that there is something substantively wrong with the legal reasoning used in arriving at the appellate court's ruling. The reason to appeal it is the belief that the ruling is in error.

To suggest otherwise only creates the perception (at least in my mind) that it is really the money for all the anti-smoking programs that is the chief concern. It certainly has the appearance that the prospect of billions of dollars is clouding the clear legal thinking and appreciation of the law that we as public health practitioners should have.

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