January 10, 2014

Stanton A. Glantz, PhD

A step forward in implementing the RICO ruling against Big Tobacco

Eight years ago, in 2006, US District Court Judge Gladys Kessler convicted the big cigarette companies and their trade and scientific groups of forming an illegal racketeering "enterprise" to defraud the American people and, among other things, ordered the cigarette companies to publish "corrective statements" telling the public that they had lied about the dangers of smoking, secondhand smoke, and nicotine addiction.  (Judge Kessler also prohibited them from challenging the evidence that these statements are true, which is why the companies no longer do so.)

Judge Kessler ordered the defendant tobacco companies to work with the Department of Justice and the public health intervenors to determine just how the corrective statements would be made on the internet, in print, and on television and radio.  These negotiations have now concluded and a draft ruling submitted to the Court. 

The tobacco companies appealed Judge Kessler's corrective statements on First Amendment grounds a year ago.  That appeal has been on hold pending resolution of the implementation issues that this agreement resolves.  That appeal will now likely proceed.

Of course, if the tobacco companies have "changed," they could drop their appeal and let Judge Kessler's order on the specific corrective statements take effect using today's implementation details.

I'm not holding my breath.
If you want to learn more about the history of the case, check out Bad Acts, the book Sharon Eubanks and I wrote about the case.
Here is the announcement that the public health intervenors sent out, which provides more details:
Legal Agreement Moves Tobacco Companies Closer to Finally Telling the Truth to the American People
Statement of the 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
WASHINGTON, DC –As the nation marks the 50th anniversary of the first Surgeon General’s Report on Smoking and Health, the major cigarette companies are nearing the day when they must finally come clean to the American people and end decades of deception that have resulted in the addiction, illness and death of millions.
Today, the U.S. Department of Justice and lawyers for the tobacco companies told a federal court that they have reached agreement on the details of how they would implement the “corrective statements” ordered by U.S. District Judge Gladys Kessler in 2006, when she found the companies guilty of violating civil racketeering laws and lying to the public about the dangers of smoking and their marketing to children.
While this agreement is an important step forward, it is not the end of the long legal battle to hold the tobacco industry accountable for its unconscionable behavior and prevent that behavior from continuing. The tobacco companies have filed time-consuming appeals at every stage of this 15-year lawsuit and reserved the right to appeal the specific language of the corrective statements ordered by Judge Kessler. We urge them to end their delay tactics and finally tell the truth to the American people. 
The U.S. Court of Appeals for the DC Circuit has rejected two previous industry appeals of Judge Kessler’s landmark 2006 decision, and we expect the appellate court would do so again.  Today’s agreement ensures that when all potential appeals are exhausted, the corrective statements will be ready to run without further delay.
To prevent the industry’s deception from continuing, Judge Kessler ordered the companies to make corrective statements through television and newspaper advertising, on the companies’ web sites and on cigarette packaging. In a November 2012 order specifying the language of the corrective statements, Judge Kessler ordered the tobacco companies to state in each statement that a federal court had ruled the companies “deliberately deceived the American public.” The five corrective statements will address the companies’ deceptions regarding 1) the health effects of smoking; 2) the addictiveness of smoking and nicotine; 3) the false advertising of low-tar and light cigarettes as less harmful than regular cigarettes; 4) the designing of cigarettes to enhance the delivery of nicotine; and 5) the health effects of secondhand smoke. 
The agreement filed with the court today spells out the specific details for implementing the corrective statements and includes mockups of the TV and newspaper ads, cigarette pack onserts and web site statements. Judge Kessler must approve the agreement. Judge Kessler’s original order also required the companies to make the corrective statements through retail point-of-sale displays, but litigation is continuing over whether the companies must make the corrective statements in those venues.
Appropriately, this agreement comes as the nation marks the 50th anniversary of the first Surgeon General’s Report on Smoking and Health, which was issued on January 11, 1964, and officially alerted the public to the deadly consequences of smoking.  Even before that report was issued, the tobacco companies had launched their fraudulent scheme to counter growing public concern and deceive the American people about the dangers of smoking. 
Judge Kessler’s verdict and the corrective statements she ordered are necessary reminders that tobacco’s devastating toll over the past 50-plus years is no accident.  It stems directly from the tobacco industry’s deceptive and even illegal practices.  As Judge Kessler found, “[This case] is about an industry, and in particular these Defendants, that survives, and profits, from selling a highly addictive product which causes diseases that lead to 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.  Defendants have known many of these facts for at least 50 years or more.  Despite that knowledge, they have consistently, repeatedly and with enormous skill and sophistication, denied these facts to the public, the Government, and to the public health community.”  Importantly, Judge Kessler found that “the evidence in this case clearly establishes that Defendants have not ceased engaging in unlawful activity.”
Our six public health organizations – the American Cancer Society, American Heart Association, American Lung Association, Americans for Nonsmokers’ Rights, National African American Tobacco Prevention Network and the Tobacco-Free Kids Action Fund (a 501c4 affiliate of the Campaign for Tobacco-Free Kids) – joined the case as intervenors in 2005.
Media Contacts:
Peter Hamm, Tobacco-Free Kids Action Fund, 202-296-5469
Lauren Walens, American Cancer Society Cancer Action Network, 202-661-5763
Mark Schoeberl, American Heart Association, 214-706-1299
Gregg Tubbs, American Lung Association, 202-715-3469
Cynthia Hallett, Americans for Nonsmokers’ Rights, 510-841-3032
Delmonte Jefferson, National African American Tobacco Prevention Network, 919-680-4000
Related Materials:
Court filings related to corrective statements
Text of corrective statements



The tobacco companies "declined comment" on the agreement. 
The story noted that "The U.S. Court of Appeals for the D.C. Circuit has rejected two industry appeals. Tobacco companies are suing over Kessler's order to include the corrective statements in "point of sale" displays at retail stores," which is encouraging, but even achieving that will take a while unless the tobacco companies withdraw their pending appeal of the corrective statements.
The story is available at http://www.usatoday.com/story/news/nation/2014/01/10/tobacco-corrective-...

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