After a long hold out, tobacco companies to issue mea culpas

Thursday, December 7th, 2017 

This story originally appeared on Fair Warning.

In a matter of days, the American tobacco industry will begin publicly admitting some ugly truths about its dark history and the health effects of smoking.

The tobacco giants will launch a court-ordered national advertising campaign to end a massive fraud and racketeering case that the federal government brought against the industry nearly two decades ago. The campaign will run on TV, in newspapers, online and on cigarette packaging.

The ads will be “corrective statements” smoking,” and will mark the long-delayed conclusion to what was described as the largest civil racketeering case in U.S. history. In pursuing the tobacco industry, the Department of Justice accused cigarette makers of carrying out a half-century conspiracy to hook smokers while lying about the hazards and addictiveness of smoking. Following a nine-month trial, U.S. District Judge Gladys Kessler in 2006 issued an encyclopedic 1,683-page final opinion that chronicled decades of industry skullduggery

Kessler lamented that she could not punish the companies financially. At one point, government lawyers had demanded that the industry be required to turn over $280 billion in ill-gotten gains. But a federal appeals court ruled that financial penalties were not available under the civil provisions of the Racketeer Influenced and Corrupt Organization Act, or RICO. So the key remedy that Kessler ordered was the series of corrective statements.

'Smoking Kills'

Even then cigarette makers delayed the day of reckoning for more than a decade by appealing and battling over the wording of the statements.

Some of the facts the industry will acknowledge:

• “Smoking kills, on average, 1,200 Americans. Every day.”

• Tobacco companies “intentionally designed cigarettes to make them more addictive.”

• Nicotine “is the addictive drug in tobacco,” and it “actually changes the brain – that’s why quitting is so hard.”

• “All cigarettes cause cancer, lung disease, heart attacks, and premature death – lights, low tar ultra lights, and naturals. There is no safe cigarette.”

Although Justice Department lawyers failed to extract the billions in damages that they sought, and many observers thought they gained, at most, a moral victory, public health advocates are hailing the corrective statements.

“The tobacco companies, for the first time, are being required to actually tell the truth about their products,” said Dennis Henigan, the director of legal and regulatory affairs for the Campaign for Tobacco-Free Kids, an advocacy group that intervened in the case.

‘Here is the truth’

The case appeared to be resolved in 2006, when Kessler ruled that cigarette makers had conspired to violate the racketeering law after a trial that cost the tobacco industry and government tens of millions of dollars in legal expenses. But the litigation dragged on for another 11 years while the tobacco companies, invoking First Amendment rights and citing RICO limitations, were able to modify the corrective statements.

For instance, the industry succeeded in striking a sentence saying, “Here is the truth” from the preamble to the corrective statements, as well as another line stating that the tobacco companies “deliberately deceived the American public.”

The newspaper ads are scheduled to come out once a month for five months in outlets ranging from The New York Times and The Washington Post to small African-American and Spanish-language community publications. In most cases, the print ads will begin appearing on Sunday, although some newspapers without weekend editions could begin publishing them as soon as Friday.

National TV commercials will begin on Monday, and will air five times a week for a full year.

Given consolidation in the industry, the only entities left to carry out the advertising campaign are Altria Group and its Philip Morris USA unit, along with R.J. Reynolds Tobacco and the former Lorillard holdings acquired by Reynolds in 2015.

Altria and Reynolds, in prepared statements, each claimed to have turned a new leaf.

“We remain committed to aligning our business practices with society’s expectations of a responsible company. This includes communicating openly about the health effects of our products, continuing to support cessation efforts, helping reduce underage tobacco use and developing potentially reduced-risk products,” Altria said.

Reynolds, in its statement, said it “will fully meet its obligations under this order as part of its commitment of being a responsible company. It’s important to note, the tobacco industry today is very different than it was when this lawsuit was filed in 1999. More than a decade ago, Reynolds American and its operating companies began a journey to transform the tobacco industry. Today, the industry is working with FDA [the Food and Drug Administration], other regulators and some in the public health community more than ever before to create a regulated marketplace that encourages innovation while reducing the harm from smoking.”

‘A rogue industry’

But Sharon Y. Eubanks, who served as lead counsel for the Justice Department during the tobacco trial, dismissed the notion that the industry has mended its ways.

“This is a rogue industry, and that hasn’t changed,” Eubanks said. Eubanks, who currently is in private practice in Washington, said that while tobacco companies note that they now are subject to FDA regulation, “they fight that tooth and nail as well.”

“When you look overseas at what’s happening and the activities that the industry is engaged in to stop tobacco control efforts … they’re still all about marketing their deadly product, and they haven’t automatically become ‘good guys’ as they would want you to think,” she said.

Eubanks also rejected the idea that the corrective statements already are common knowledge among the public. “Generally speaking, people know that cigarette smoking is harmful to your health, but I don’t think they recognize so much about the addictive qualities of cigarettes and why they’re that way,” she said. “I don’t think that people recognize that the labels low-tar, light and and ultra light don’t mean what they say.”

In her withering opinion in 2006, Kessler declared that the tobacco industry “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, to the Government, and to the public health community.”


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