New legal threat to Big Tobacco
on Jul 23, 2005 at 8:49 am
As the federal government’s new appeal to the Supreme Court in the anti-racketeering case against the tobacco industry moves along at a leisurely summertime pace, the case is moving apace in U.S. District Court in Washington. The latest development there — the second this week (see post below) — poses a new threat to the industry as it attempts to avoid heavy penalties, should it be found to have violated the RICO law.
On Friday, District Judge Gladys Kessler ruled that a coalition of anti-smoking groups will be allowed to intervene in the case, specifically to press for much tougher remedies than the Justice Department is now pursuing.
The judge remarked in her opinion in U.S. v. Philip Morris, Inc., et al. (docket 99-2496): “It will serve the public interest for major public health organizations…who have long experience with smoking and health issues, to contribute their perspective on what appropriate and legally permissible remedies may be imposed should liability be found.” (Order No. 987 with memorandum opinion.)
In recent weeks, the Justice Department has several times pared down its demands for potential remedies in the case, and has now settled on a proposal to require the industry to spend $10 billion over five years on a stop-smoking campaign (along with $4 billion over ten years on public education about smoking hazards). That $10 billion smoking-cessation figure compares with $130 billion, over 25 years, that the Department was advocating as recently as mid-May. (The government has filed its appeal in the Supreme Court in a move to regain authority to seek heavier penalties because of limits set by the D.C. Circuit.)
The government in the latest (and final) version of its remedies proposal in District Court has dropped other proposals it had advanced earlier, including requiring that cigarettes be sold only in cartons, not single packs, and that the cartons be kept behind the counter in stores.
Judge Kessler on Friday cited all of the government cutbacks in deciding to let the anti-smoking groups into the case to ask for stiffer penalties. Noting that she had previously expressed “concern about changes in the government’s position,” she concluded that the government no longer will represent the interests of the outside groups in pursuing what they consider adequate remedies for alleged deception by the tobacco companies about the health hazards of smoking.
Those groups, she found, would suffer harm that is “actual and imminent” if only the government’s present remedy plan is before the court. “The government,” she wrote, “no longer shares the views of intervenors as to how extensive the appropriate remedies should be in this case in order to prevent and restrain future violations of RICO, should the court find liability.”
The groups will be allowed into the case only to make legal arguments, and not to add new factual evidence, according to the court order. The industry will have a full opportunity to respond, the judge said. The industry vigorously opposed the groups’ intervention. Post-trial briefs in the case, including that of the new intervening groups, are to be completed by all sides by September 19. (The Supreme Court probably will not have acted on the government’s appeal there before late September.)
The groups that Judge Kessler admitted into the remedies debate in her court are Tobacco-Free Kids Action Fund, American Cancer Society, American Heart Association, American Lung Association, Americans for Nonsmokers’ Rights, and National African American Tobacco Prevention Network.
