Health groups file brief urging tougher remedies in tobacco lawsuit

The six public health organizations that intervened in the federal government's tobacco lawsuit filed a brief last Wednesday urging the judge to strengthen the remedies proposed by the government, including imposing additional restrictions on tobacco marketing and increasing both the amounts the tobacco companies must pay to fund smoking cessation, youth tobacco prevention and public education programs and the duration of those programs.

The brief was filed by the American Cancer Society, American Heart Association, American Lung Association, Americans for Nonsmokers’ Rights, the National African American Tobacco Prevention Network and the Tobacco-Free Kids Action Fund (a 501(c)4 affiliate of the Campaign for Tobacco-Free Kids).  Judge Gladys Kessler on July 22 granted a motion to intervene filed by the six groups, making them formal parties to the lawsuit and granting them similar opportunities as the government and the tobacco company defendants to present arguments to the court.

Critically, the six public health organizations support the U.S Government’s conclusion that the evidence presented in this case demonstrates that the defendant tobacco companies continue to engage in serious, massive wrongful acts that mislead the American public about the health effects of their products, make their products appealing to youth and deter addicted smokers from quitting.  The brief emphasizes the need to ensure that the remedies address all special populations including African-American; Asian American/Pacific Islander; Latino/Hispanic; Native American/Alaska Native; Lesbian, Gay, Bisexual and Transgender (LGBT); and low socio-economic status individuals.  Thus, the public health groups join with the U.S. Government in urging the court to find that the defendant tobacco companies have violated RICO law.

Remedies recommended by the public health groups in addition to or in place of those recommended by the Department of Justice include the following:

Smoking Cessation:  Instead of a $2 billion a year, five-year smoking cessation program, the tobacco companies would be required to pay $4.8 billion annually to fund a comprehensive smoking cessation program.  The program would be available to all smokers who want to quit.  Currently, 70 percent of the nation's 45.4 million adult smokers say they want to quit.  The program would continue until less than 10 percent of those smokers who say they want to quit are still smokers.  Although no time limit is set for the smoking cessation program, if this smoking cessation goal is not met, the tobacco companies would have to pay $48 billion during its first 10 years and as much as $96 billion over 20 years to fund the cessation program. The payments end once the smoking cessation goal is met.  This provides a significant financial incentive for the companies not to engage in deceptive marketing intended to deter smokers from quitting, as they have often done in the past.

Public Education and Countermarketing: The tobacco companies would be required to pay $600 million a year (instead of the $400 million a year proposed by the Government) for at least 10 years to fund public education and countermarketing campaigns in three areas – youth smoking prevention; the risks of light and low-tar cigarettes (and other cigarettes that the tobacco companies have claimed reduce health risks); and the dangers of secondhand smoke. These programs would continue for at least 10 years, but would continue until certain goals are met. The youth smoking prevention program would continue until the youth smoking rate is reduced to less than five percent.  The other public education programs would continue until 90 percent of the public is fully informed about the risks of light and low tar cigarettes and secondhand smoke.   Because their payments would end when these goals are achieved, the tobacco companies again would have a significant financial incentive not to market to youth or deceive the public about health risks of their products and the dangers of secondhand smoke.  Funding for public education and countermarketing would total $6 billion over 10 years and up to $12 billion over 20 years if the goals of the various campaigns are not achieved.

Total funding for the cessation and public education programs proposed by the health groups would be $5.4 billion a year, $54 billion over 10 years and up to $108 billion over 20 years if smoking cessation, youth smoking reduction and public education goals are not met.  In contrast, the government has proposed requiring the tobacco companies to pay just $14 billion over 10 years to fund cessation and public education programs – $10 billion over five years for cessation ($2 billion a year) and $4 billion over 10 years for public education and countermarketing campaigns ($400 million a year).

As noted above, the smoking cessation and public education campaigns would continue until smoking reduction and public education goals are met rather than for a required number of years.  This approach is intended to prevent and restrain future wrongdoing by creating economic disincentives for the tobacco companies to continue to engage in such wrongdoing.  If they continue to engage in wrongful practices that deter smokers from quitting, they will have to continue to pay for the cessation program. If they continue to addict children and deceive the public, they will continue to have to pay for the youth prevention and public education campaigns.

Restrictions on Tobacco Marketing and Other Practices: In light of the overwhelming evidence presented at the trial of continued tobacco industry marketing that impacts youth, the public health groups proposed adding new restrictions supported by the evidence presented by the Government, but omitted from the Government’s proposed order, while endorsing those proposed by the government as well. Key new restrictions include the elimination of the kind of imagery that appeals to children by limiting cigarette advertising to black text on white background in magazines and other publications with large youth readership (more than two million youth readers or more than 15 percent youth readership) or in any retail outlets open to youth; prohibiting tobacco companies from including information on youth in their consumer databases or from collecting any data or records about youth; and prohibiting motor sport or other brand name sponsorships that result in exposure to youth (the government had limited the sponsorship restriction to motor sports).

Youth Smoking Reduction Targets and Penalties:  The health groups proposed strengthening the government’s proposal for establishing youth smoking reduction targets and financial penalties if the tobacco companies fail to meet these targets. The changes would require that the goal of reducing youth smoking rates by 42 percent from 2003 level be met by 2010 instead of 2013 (the latter was proposed by the government); base the targets on monthly rather than daily youth smoking rates (in order to hold the tobacco companies accountable for both youth who are experimenting with tobacco and those who have become regular smokers); and increase financial penalties when targets are missed.  These changes are necessary to insure that it is no longer economically beneficial for the defendant tobacco companies to market to our nation’s youth.

Compliance and Enforcement: The health groups proposed expanding the authority and jurisdiction of the Independent Investigations Officer who would be appointed by the court to ensure remedies imposed in this case are effectively implemented and enforced.

Because of the tobacco companies long history of evading specific restrictions on their conduct and the strong economic incentives they have to continue to engage in wrongdoing, including marketing to youth and deceiving smokers in order to deter them from quitting, the public health groups urged the court to impose a comprehensive set of remedies that include: 1) prohibitions on specific wrongful practices; 2) economic disincentives that make it unprofitable for the tobacco companies to continue to engage in wrongdoing; and 3) effective enforcement of the remedies to prevent the tobacco companies from evading them as they have in the past.

“It is essential that the Court adopt a comprehensive remedial approach to prevent and restrain the defendants from continuing to engage in the type of fraud and deception that has been a part, and remains a part, of this industry’s standard operating procedure,” the public health groups state in their brief.

The public health intervenors’ brief can be found by clicking here.  

The public health intervenors’ revisions to the government’s proposed remedies order can be found by clicking here.

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