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Court Ruling Puts Responsibility on Elected Officials To Rein In Tobacco Racketeers

Statement of William V. Corr Executive Director, Campaign for Tobacco-Free Kids
August 22, 2006

Washington, DC — U.S. District Judge Gladys Kessler’s ruling last week that the tobacco companies are racketeers who have lied – and continue to lie – to the American people about the health risks of their products and their marketing to children puts the responsibility squarely on elected officials, beginning with President Bush and Congress, to rein in the industry and protect our nation’s health.

It is unfortunate that Judge Kessler felt constrained by a controversial appeals court ruling in the remedies she could impose. Given the magnitude of tobacco industry wrongdoing detailed in her ruling and its devastating toll on our nation, the Bush Administration should appeal the remedies portion of the ruling and seek stronger remedies that both address the consequences of the industry’s wrongdoing and deter future wrongdoing. It is also critical that Congress enact legislation granting the U.S. Food and Drug Administration (FDA) authority over tobacco products and that state and local elected officials support proven measures to reduce tobacco use and exposure to secondhand smoke.

As Judge Kessler wrote, “In a democracy, it is the body elected by the people, namely Congress, that should step up to the plate and address national issues with such enormous economic, public health, commercial, and social ramifications.” If elected leaders fail to act, they must be held accountable for allowing the tobacco industry to get away with practices that produce, in Judge Kessler’s words, “a staggering number of deaths per year, an immeasurable amount of human suffering and economic loss, and a profound burden on our national health care system.”

There is a need for urgent action at all levels of government:

The Federal Government: Congress must finally enact long-pending legislation to grant the FDA authority over the manufacturing, marketing and sale of tobacco products. It is mind-boggling that the rogue industry described by Judge Kessler and its deadly and addictive products are exempt from basic health and safety regulations that apply to other consumable products and their manufacturers. The main reason is the millions of dollars the industry spends every year on campaign contributions and lobbying. It is time for Congress to finally end the special protection accorded the tobacco industry and pass this legislation, which would grant the FDA authority to crack down on marketing and sales to children, stop the tobacco companies from misleading consumers and require changes in tobacco products to make them less harmful and less addictive.

The Bush Administrative should also appeal the remedies portion of Judge Kessler’s ruling and seek stronger remedies, including funding for programs to prevent children from starting to smoke and help the nation’s 45 million smokers quit and penalties if the industry fails to achieve targets for reducing youth smoking rates. Judge Kessler stated that she could not impose these remedies because of a February 2005 ruling by a deeply divided panel of the U.S. Appeals Court for the D.C. Circuit that restricted the remedies available under the civil racketeering (RICO) law. The Department of Justice has already argued that this ruling severely undermined the RICO law in general. The Justice Department should appeal the remedies portion of this case both to address the consequences of and prevent tobacco industry wrongdoing and to ensure civil RICO remains an effective tool against other wrongdoers, including organized crime.

Whether through funding eventually provided by this lawsuit or through actions of the Administration and Congress, much more must be done to help smokers quit. Studies find that about 70 percent of adult smokers want to quit, but few succeed without access to scientifically proven stop-smoking medications and counseling. Despite recommendations by its own expert advisory committee to implement a national action plan to help smokers quit, the Administration has failed to implement most elements of this plan or to devote new resources to doing so. Congress and the Administration should fully fund and implement the action plan, which calls for increasing the federal cigarette tax by $2 per pack and using at least half the revenue for smoking cessation initiatives.

State and Local Government: Judge Kessler’s ruling should spur governors and state legislators to implement proven measures to reduce tobacco use and exposure to secondhand smoke, including higher tobacco taxes, smoke-free workplaces and public places, and effective tobacco prevention and cessation programs funded at levels recommended for each state by the U.S. Centers for Disease Control and Prevention. While a growing number of states have implemented these measures in recent years, too many states have not, threatening to make the United States a nation of haves and have-nots when it comes to tobacco use. Every state should take effective action to reduce smoking and exposure to secondhand smoke. Local governments should as well.

Voters will have the opportunity to support these proven tobacco prevention measures through ballot initiatives in at least six states this November. They will vote on measures in California and South Dakota to increase cigarette taxes and fund tobacco prevention and cessation programs (and possibly in Missouri, pending the outcome of a legal review); in Arizona, Nevada and Ohio to require smoke-free workplaces; and in Florida to set aside a portion of the state’s tobacco settlement money for tobacco prevention programs.

The tobacco industry’s tactics in opposing these initiatives provide excellent examples of how they continue to deceive the American people today. In Arizona and Ohio, for example, R.J. Reynolds and other tobacco interests are seeking to defeat smoke-free workplace ballot measures by offering counter-initiatives that would allow widespread indoor smoking, but have blatantly deceptive names such as the Arizona Non-Smoker Protection and Smoke Less Ohio. The habit of lying that got the tobacco companies in trouble with Judge Kessler is proving hard to break.

International: The tobacco companies are using the same deceptive tactics and marketing to children that they have long used in the United States to penetrate and expand new markets around the world, especially in the developing world where the tobacco epidemic is spreading most rapidly. Nations have an effective tool to fight back in the new international tobacco control treaty, the Framework Convention on Tobacco Control. The treaty commits ratifying nations (137 nations have ratified to date) to implement measures to reduce tobacco use, including a ban on tobacco advertising, promotion and sponsorship (with an exception for nations with constitutional constraints); large, graphic health warnings; measures to protect non-smokers from secondhand smoke; tobacco product price increases; and regulation of the content of tobacco products. Unfortunately, the United States has not ratified the treaty or been a leader in this effort. The U.S. should ratify the treaty and support its effective implementation domestically and internationally.

Judge Finds Tobacco Industry’s Unlawful Activity Continues Today

The need for effective and aggressive action against tobacco use is especially urgent because the tobacco industry has not fundamentally changed and continues its harmful practices today, as Judge Kessler repeatedly noted. “The evidence in this case clearly establishes that Defendants have not ceased engaging in unlawful activity,” Judge Kessler wrote. “Most defendants continue to fraudulently deny the adverse health effects of secondhand smoke which they recognized internally; all Defendants continue to market “low tar” cigarettes to consumers seeking to reduce their health risks or quit; all Defendants continue to fraudulently deny that they manipulate the nicotine delivery of their cigarettes in order to create and sustain addiction; some Defendants continue to deny that they market to youth in publications with significant youth readership and with imagery that targets youth; and some Defendants continue to suppress and conceal information which might undermine their public or litigation position…. Their continuing conduct misleads consumers in order to maximize Defendants’ revenues by recruiting new smokers (the majority of whom are under the age of 18), preventing current smokers from quitting, and thereby sustaining the industry.”

Judge Kessler’s ruling should explode once and for all the myth perpetuated by the tobacco companies through expensive PR campaigns that they are changed, responsible corporate citizens. The ruling also makes clear that if elected leaders stand idly by while the tobacco companies continue to engage in unlawful activity and do so much harm to the nation’s health, they should bear as much responsibility as the companies themselves.