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The expectation was that by now, after years of controversy, the Defendants would have changed and started to demonstrate a level of responsibility that is commensurate with the lethality of their products.
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But Judge Gladys Kessler tells us that the Defendants have not changed; that their pattern of purveying disinformation and denial to the public continues. United States v. Philip Morris USA, Inc., 449 F. Supp. 2d 1 (D.D.C. 2006). In 816 pages of findings of fact, Judge Kessler meticulously documents the Defendants’ racketeering activities. Id. at 35-851. Over 136 pages alone, for example, describe the Defendants’ current youth tracking and marketing activities. Id. at 556-692.
Several key remedies proposed by the Plaintiff and Intervenors at trial must be implemented if this case is to end the Defendants’ racketeering conduct. . . .
To illustrate the forward-looking nature of the two remedies, this brief shows how these remedies would work to prevent and restrain racketeering conduct by the Defendants that has occurred since the conclusion of the liability phase of the trial.
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The U.S. Supreme Court will consider narrowing the scope of a federal racketeering law often used against companies, agreeing to hear arguments from a man convicted of taking part in a series of bank burglaries.
The appeal by Edmond Boyle contends that, under the Racketeer Influenced and Corrupt Organizations Act, prosecutors must show an "ascertainable structure" distinct from the allegedly criminal conduct. Lower courts are divided on the question.
Business groups previously pressed similar arguments to limit a law that was originally aimed at mobsters who gained control of unions and other legitimate organizations.
RICO, as the 1970 law is known, has since been invoked in a variety of contexts, including the federal government's suit against the tobacco industry. It authorizes criminal penalties and triple damages in civil suits.
The Bush administration urged the Supreme Court not to hear the case, saying the text of RICO "does not include any 'ascertainable structure' requirement."
Below is the United States Court of Appeals for the District of Columbia Circuit's current oral argument calendar for the 2008-2009 Term. . . .
Tuesday, October 14, 2008 9:30 AM
Judges Sentelle, Tatel and Brown
06-5267 USA v. Philip Morris USA
U.S. v. Philip Morris: Topping the list is United States v. Philip Morris, an appeal of the decade-long civil racketeering case against the tobacco industry. Philip Morris, now known as Altria Group, is challenging the 2006 verdict which found that it and six other Big Tobacco defendants conspired for years to deceive the public about the health risks of tobacco. In addition to upholding the lower-court verdict, the government is asking the court to order the tobacco industry to pay more than $12 billion to fund a smoking cessation program and to fund an educational, counter-marketing campaign. Miguel Estrada of Gibson Dunn and Michael Carvin of Jones Day plan to argue the case on behalf of Altria.
On July 18, the U.S. Department of Justice (DOJ) petitioned the U.S. Supreme Court to reinstate its request for a $280 billion "disgorgement of past profits" remedy from the tobacco industry. . . .
Initially, DOJ sought $130 billion from the tobacco companies to be used for smoking cessation programs over the next 25 years. Then, on June 7, DOJ attorney Stephen Brody unexpectedly proposed instead a $10 billion settlement to focus not on 45 million current smokers, but on the 1.3 million people who start smoking every year.
Testimony and arguments in the trial, which opened before Kessler in September 2004, concluded in June. . . .
"The experience with the MSA offers the prediction that absent pressures from specific constituencies and without leadership from states' executive and legislative branches, states spend the proceeds on a diverse range of priorities," said Sloan in a study published in the January/February 2005 issue of Health Affairs.
The success of the MSA and other tobacco lawsuits, he said, has "elicited interest in using litigation to achieve public health objectives in other areas from fast food to guns."
Given the opportunity to put tobacco control back on the federal agenda, virtually all major public health and medical specialty groups, including the American Cancer Society, the American Heart Association, the American Lung Association, and the American Medical Association, strongly support the FDA bill. Nonetheless, a few prominent tobacco-control advocates such as Stanton Glantz of the University of California, San Francisco, have expressed skepticism, arguing that Philip Morris's support indicates that the legislation would probably benefit its corporate interests. And certainly, from a historical point of view, Congressional legislation passed under the rubric of "regulation" has often come back to haunt public health advocates. . . .
Thus, it behooves public health advocates and Congress to more fully understand all the implications of FDA regulation. Some critics have referred to the inherent compromises required to enact such a bill as "dancing with the devil." In this case, the devil will be in the details. Will FDA regulation lead to interventions that further reduce the prevalence of smoking in the United States and its effect on the burden of disease? . . .
Nonetheless, despite its initial limitations, the bill offers important new federal leverage for reducing smoking-related disease, disability, and deaths.
As Congress debates the regulation of tobacco by the FDA, it would be wise to consider ways of tying serious efforts to reduce tobacco use in this country to efforts to reduce the burden of tobacco-related diseases throughout the world. Saving lives from the manifold harms of tobacco should not be viewed as a zero-sum game. Nor should FDA regulation of U.S. tobacco products be seen as offering new respectability to an industry that, as a federal judge has ruled, has been committing racketeering and fraud for more than half a century.
Indeed, you made a great deal of your public commitment to changing Philip Morris’ marketing practices, claiming that Philip Morris was a reformed company and that it would no longer engage in marketing practices that had been identified as appealing to youth. . . .
Judge Kessler ordered Philip Morris USA to desist from using misleading descriptors like “light”, “low” and “mild”. While Judge Kessler’s order is on appeal, it is worth noting that Philip Morris has endorsed legislation in the United States that would also ban the use of these misleading terms.
Nonetheless, Philip Morris International/Sampoerna is now using a singing star to market a cigarette using the term “mild” to a new generation of Indonesian children. . . .
By this letter we are formally requesting you on behalf of Philip Morris International/Sampoerna to immediately withdraw your sponsorship of and all marketing related to Alicia Keys’ concert and agree not to engage in this kind of activity in the future in Indonesia or any other country in which PMI operates. How you respond will send a clear signal about what the world community can expect from PMI under your leadership.
"FTC Test method."
The American Legacy Foundation(R) commends the FTC for its proposal to prohibit tobacco companies from claiming it endorses the thoroughly discredited "Cambridge Testing Method" for determining tar and nicotine content in cigarettes.
The tobacco companies have used the test and the claim of FTC endorsement to successfully market and sell so-called "light" and "low-tar" cigarettes to millions of smokers under the pretense that they are less dangerous, when in fact, they have known for years that these products are no safer than traditional cigarettes.
The fraudulent marketing of light cigarettes was one of the key elements of the U.S. District Court's decision that the tobacco companies had violated federal racketeering laws. . . .
Due to the seriousness of the problem, we urge the next step to be taken and the use of light and low tar and similar descriptors be prohibited altogether.
On May 22, 2007, the U.S. Circuit Court of Appeals for the District of Columbia set the briefing schedule, which requires the following:
* Defendants' opening brief -- due August 10, 2007
* Government's responsive/cross-appeal brief -- due November 19, 2007
* Intervenors' responsive/cross-appeal brief -- due December 10, 2007
* Defendants' cross-response/reply brief -- due February 27, 2008 * Government's reply brief on its cross-appeal -- due April 14, 2008
* Intervenors' reply brief on their cross-appeal -- due April 28, 2008
* Deferred appendix -- due May 5, 2008
* Final briefs -- due May 19, 2008
It is ORDERED, on the court’s own motion, that this case be scheduled for oral argument on October 14, 2008, at 9:30 A.M., before Chief Judge Sentelle and Circuit Judges Tatel and Brown.
The time and date of oral argument will not change absent further order of the Court.
A separate order will be issued regarding the allocation of time for argument.
FOR THE COURT:
Mark J. Langer, Clerk
Federal disclosure regulations designed to expose financial conflicts and protect the integrity and objectivity of taxpayer funded research were ignored by the Agency for Healthcare Research and Quality (AHRQ) when assembling panels to write U.S. smoking cessation policy in August 1998 and July 2006. Their discovery and application in 2007 revealed widespread financial conflicts which resulted in a damage control nightmare. The integrity of mandatory pharmacology use recommendations in both the June 2000 and May 2008 Clinical Practice Guideline for Treating Tobacco Use and Dependence are in question. . . .
In a February 7, 2007 WSJ article Fiore claimed to have stopped accepting pharmaceutical industry quit smoking product consulting fees and honorariums in 2005.
Fiore's testimony on or about May 9, 2005 in U.S. v. Philip Morris does not mention that he stopped accepting consulting fees. He testifies on PDF page 14 that, "Over the past five years, my outside consulting work on an annual basis has ranged between about $10,000 and $30,000 or $40,000 per year." He testifies on page 15 that each year he receives another $50,000 from the Glaxo Wellcome Chair he occupies and references above.
The website of the University of Wisconsin Center for Tobacco Research and Intervention (UW-CTRI), founded by Fiore in 1992, and which he continues to direct, does not provide visitors with any statement as to financial conflicts.
handing off tobacco to the EPA makes about as much sense as its nearly completed pass to the Food and Drug Administration. A bill expected to be voted on soon would impose new restrictions on marketing, raise cigarette taxes, and police the ingredients in tobacco products, including nicotine levels. Any reckless FDA policy is bound to be popular . . .
it contradicts the premise of the federal government's case against Big Tobacco. Initiated by Janet Reno and continued by the Bush Administration, the federal suit argued that the industry committed fraud by falsely implying that light or low-tar cigarettes were healthier than standard smokes. Now Congress wants the FDA to mandate less nicotine and tar - the very practices it once claimed to find so odious.
In a final irony, the politicians backing this bill, especially sponsors Ted Kennedy and Henry Waxman, are the same ones demanding that the FDA crack down on "Big Pharma." They say it isn't doing enough to protect the public from risky but possibly beneficial new drugs. So: Lend the FDA imprimatur to an inherently dangerous product to fatten it up for taxation, while at the same time slow down or block the approval of life-saving therapies that treat disease instead of cause it. Congressional priorities are rarely so grotesque.
Finally, despite Defendants’ claims that they have materially altered their management and are now “new” companies, the evidence demonstrates that they have not changed their policies or personnel in any meaningful way. For example, Philip Morris’ current top executive staff is composed entirely of veteran employees with an average of fifteen to twenty years of company experience. The assertion that such longstanding, faithful employees will usher in dramatically new corporate policies seems reasonably unlikely.
The recent decision by the University of California Board of Regents to delay ruling on whether to ban research funding from tobacco companies extends a long period of division among UC faculty and administration. . . .
Last August, the district court of the District of Columbia found Philip Morris guilty of manipulating and misrepresenting scientific data, violations of the federal Racketeer Influence and Corrupt Organizations (RICO) act. The company was cited for the Center for Indoor Air Research, created and operated by Philip Morris under the auspices of an independent research facility, which produced data that furthered Philip Morris's economic goals. The Center funded a study led by James Enstrom, a University of California, Los Angeles researcher, who the Judge directly implicated in the misconduct.
Many University of California faculty members say they are frustrated by the board's hesitation to vote on the ban, especially in light of foul play on the part of the tobacco companies.