On its website devoted to promoting the Philip Morris-supported FDA tobacco legislation currently before Congress, the American Cancer Society continues to accuse Big Tobacco of lying about the ingredients in cigarettes (click here for my original account of this story).
The American Cancer Society titles its page: "Stop Big Tobacco from Lying About Their Ingredients."
The ACS implores readers to support the proposed FDA legislation because: "It’s time to Stop Big Tobacco from Lying About Their Ingredients!"
The page states: "Read our talking points about how Big Tobacco is lying about their ingredients," and links to this page.
However, the "talking points" page about how Big Tobacco is lying about their ingredients does not say anything about how Big Tobacco is lying about their ingredients. It merely points out that consumers are largely unaware of the ingredients because there is no requirement that these ingredients be disclosed. It also mentions that the tobacco companies are deceiving consumers by marketing products with terms such as "low-tar," which imply some degree of health benefit.
The Rest of the Story
The rest of the story is that the American Cancer Society is publicly accusing the tobacco companies of lying about the ingredients in cigarettes, but is putting forward not a shred of evidence to support that accusation. In fact, the talking points page which claims to show "how Big Tobacco is lying about their ingredients" provides no evidence whatsoever that the tobacco companies are lying about their ingredients. This is a completely unsubstantiated public accusation.
I must emphasize the seriousness of this accusation. The American Cancer Society is claiming that the tobacco companies are "lying" to the American public about the ingredients of their products -- not just misleading people, but outright lying. If true, this would represent consumer fraud. It would likely represent a continued violation of the RICO statute. It would make the tobacco companies liable in court for consumer fraud, would open the door to literally thousands of lawsuits, including class action suits, and could potentially cost the companies billions of dollars.
Given that attorneys for smokers are now suing the tobacco companies simply for marketing their products to their clients, there must be a pool of attorneys who would love to get their hands on the proof that the American Cancer Society has that the tobacco companies are committing widespread consumer fraud by lying to their customers about the ingredients in cigarettes.
What the American Cancer Society is accusing the tobacco companies of doing, if true, would represent perhaps the most egregious conduct ever on the part of the industry. Most of the inappropriate behavior that I cited in my testimony against tobacco companies refers to misleading the public, deceiving consumers, making false implications, or hiding information. There are few, if any, examples of outright factual misrepresentation of information, such as the actual ingredients of cigarettes.
In fact, I remember being asked by a tobacco industry attorney in one of my depositions if I could give any examples of a material (factual) misrepresentation of information, rather than merely a misleading or deceptive representation, or concealment, of that information. I explained that the way the tobacco companies had operated was not necessarily to outright lie, but to undermine the public's appreciation of the health hazards and addictiveness of cigarettes by misleading and deceiving people. It certainly would have helped my testimony tremendously to have this apparently new information about how the tobacco companies are lying to the public about cigarette ingredients.
The second reason why this accusation is critically important is because it is an accusation not about behavior in the past, but about current behavior. The American Cancer Society is not saying: "Prevent Big Tobacco From Ever Lying Again About Their Ingredients"; the claim is in the present tense: "Big Tobacco is lying about their ingredients."
This has rather massive implications for an industry that is trying to demonstrate in courtrooms around the country that its behavior has changed and that there is therefore no need to award high punitive damages. The accusation also has massive implications for the DOJ tobacco lawsuit - under appeal - in which the fact of continuing lying by the industry would wipe out its primary argument in the appeal: that the DOJ, while it might have demonstrated fraud in the past, has failed to prove continuing violation of the RICO statute.
Frankly, it is surprising to me that the cigarette companies have not called the American Cancer Society on this accusation.
One possible reason they have not is that perhaps they realize that the ACS is making such a ridiculous claim that no one will believe it anyway. Perhaps the tobacco companies are relying upon the fact that the credibility of the ACS is falling due to its continued misrepresentations. And if the tobacco companies are relying upon the lack of credibility of the ACS, then maybe it is time for the American Cancer Society to start taking notice.
While the tobacco companies may not call the ACS on their accusation, I do.
I'd like to see the documentation that the tobacco companies are lying about their ingredients, or else I think it is only appropriate that the ACS retract its accusation.
Such information - relating to continued lies by the tobacco industry - is critically important in lawsuits throughout the nation, including the DOJ case appeal. It should not be withheld by the American Cancer Society.
Unless of course the ACS is just blowing smoke. In which case, it's not so clear to me on what grounds the ACS can stand before the public and complain about the tobacco companies deceiving the public. How is deception by the tobacco companies wrong, but an outright false accusation of ethical wrongdoing by an anti-smoking group appropriate?
So as far as the ACS' accusation that the tobacco companies are lying about their ingredients goes, I today call on the Cancer Society to either prove it or remove it.
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