U.S. Department of Justice (DOJ) Lawsuit
On May 22, 2009, a panel of the U.S. Court of Appeals for the District of Columbia Circuit upheld findings by a federal district court in an action brought by the Department of Justice (DOJ) that the major tobacco companies have engaged in a decades-long pattern of fraud against the public as well as the corrective remedies ordered by District Court Judge Gladys Kessler. The case will likely be appealed by the defendants to the Supreme Court.
On a related topic, Congress is in the final stages of passing legislation that would grant the Food and Drug Administration (FDA) regulatory authority over the tobacco companies. The lengthy proposal includes very specific criteria for the membership of an FDA Scientific Advisory Committee. Among the members are three (nonvoting) tobacco industry representatives. This seems contrary to the intent of the legislation to regulate the production and marketing of the industry's addictive and deadly products, and is certainly unacceptable given the findings by the Federal District Court that the industry has knowingly and willingly defrauded the American public about the health effects and addictiveness of its products for five decades.
Based on the decision upholding Judge Kessler's ruling in the DOJ case, ANR felt strongly that it should go on the record regarding its concern over the level of tobacco industry representation on the FDA Science Advisory Committee. We wrote to Congressman Henry Waxman and Senator Ted Kennedy, co-sponsors of H.R. 1265/S. 982, voicing our concerns. The purpose of ANRs communications are not to oppose the FDA bill outright, but to go on the record as objecting to the presence of tobacco industry representatives on the Advisory Committee. This is particularly important in light of the Framework Convention on Tobacco Control (FCTC) Article 5.3 obligations both in the U.S and with other Parties. FCTC Article 5.3 section 4.8 stipulates that Parties should not allow any person employed by the tobacco industry or any entity working to further its interests to be a member of any government body, committee or advisory group that sets or implements tobacco control or public health policy.
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On August 17, 2006, nearly one year after Americans for Nonsmokers Rights and five other public health groups (American Cancer Society, the American Heart Association, the American Lung Association, the National African American Tobacco Prevention Network and the Tobacco-Free Kids Action Fund) intervened in the case, U.S. District Judge Gladys Kessler issued her final opinion in the government's long-standing racketeering lawsuit against the tobacco industry.
Judge Kesslers decision contained numerous findings, including the following regarding Secondhand Smoke (referred to as ETS in the decision) (emphasis added):
Defendants have publicly denied what they internally acknowledged: that ETS is hazardous to nonsmokers
Internally, Defendants recognized that ETS is hazardous to nonsmokers
Internally, Defendants expressed concern that the mounting evidence on ETS posed a grave threat to their industry
Defendants undertook joint efforts to undermine and discredit the scientific consensus that ETS causes disease
Defendants made false and misleading public statements denying that ETS is hazardous to nonsmokers
Defendants continue to obscure the fact that ETS is hazardous to nonsmokers
Among the remedies imposed by Judge Kessler were a requirement that the tobacco companies make corrective statements in various media outlets, including the following one:
"Each Defendant shall be required to make separate corrective statements concerning the following: (a) the adverse health effects of smoking; (b) the addictiveness of smoking and nicotine; (c) the lack of any significant health benefit from smoking low tar, light, ultra light, mild, and natural, cigarettes; (d) Defendants manipulation of cigarette design and composition to ensure optimum nicotine delivery; and (e) the adverse health effects of exposure to secondhand smoke (also known as environmental tobacco smoke, or ETS).
On September 1, two weeks after this scathing indictment of the industry and its business practices, Philip Morris filed documents with the court requesting that it be permitted to continue using the terms low tar, light, ultra light, mild, and natural, cigarettes outside of the United States, somehow believing that exporting its lies would be acceptable. This action further demonstrates that the industry cannot and should not be trusted to tell the truth about its products or the health effects of secondhand smoke. It is now clearer than ever that the tobacco industry has no standing to interfere with local and state lawmakers in their efforts to enact smokefree legislation. Advocates are encouraged to point out Judge Kesslers findings to further discredit the industry and its allies.
Historic Appeals Case Against The Tobacco Industry Positions Court To Decide On Key Tobacco Control Issues (Medical News Today - 10/15/08)
Prosecutor Says Bush Appointees Interfered With Tobacco Case (Washington Post - 3/23/07)
Judge Gladys Kessler Rules
that Tobacco Industry May Not Use 'Light' or 'Low Tar' Labels When Marketing Abroad
Kessler wrote, "The Court sees no justification, whether legal or ethical, for concluding that Congress intended to allow a Defendant to continue to tell the rest of the world that "light/low tar" cigarettes are less harmful to health when they are prohibited form making such fraudulent representations to the American public."
Plaintiff Intervenors filed a Notice of Appeal on November 9, 2006 (no link)
ANR's Statement on Kessler's Ruling (8/18/06)
Intervenors Reply to Defendants (9/26/05)
created an ad, "Is There a Cancer on the Justice Department," after
the Department made a dramatic change in its case by significantly reducing the
remedies it had originally requested in the case.