THU AM: DOJ Lawyers Sum up Addiction, Teen Marketing Issues; Webb Counters Addiction Charges.

February 24, 2005 1:30 pm by Gene Borio

Attorney Frank Marine began the DOJ’s Interim Summation this morning, concentrating on addiction issues. Renee Brooker, in a presentation that ran too long and had to be suddenly truncated, concentrated on youth marketing issues.

Mr. Marine first gave a broad definition of fraud, claiming that even if a statement may be literally true, it can be fraudulent if meant to deceive.

Mr. Marine then focused on what the industry said, when they said it, and whether they knew their statements were false, misleading or fraudulent when they made them.

In a slight shift of position–which the judge noted–Mr. Marine said there may have been a reasonable basis in early 60s for the industry to tie addiction to symptoms of withdrawal or intoxication. But, he said, that position was no longer legitimately tenable by the 80s.

Judge Kessler asked Mr. Marine to give a date by which the government would say there was no longer reasonable scientific debate on the issue. Mr. Marine said certainly by the early 80s when NIDA and the WHO released reports.

He deconstructed industry addiction-belittling statements like the perennial mantra that as many smokers have quit since 1964 as are smoking today. He showed how such a statement gave the public a false impression of the true difficulty of quitting smoking. Meanwhile, he said, documents and industry witnesses like Dr. Farone showed the industry was consistently aware of the importance of nicotine and designed their products to deliver it.

Mr. Marine summed up his presentation by saying that it is not enough for tobacco companies to simply say, “Now we agree.” The industry’s statements since the trial began, he inferred, were meant to undercut the DOJ’s case. After such a decades-long fraud, he said, the Defendants must take affirmative action to “stem and undo the conduct they are responsible for.” He said the Defendants’ resistance to the DOJ’s proposed smoking cessation remedy is the “real face of the so-called ‘new’ Philip Morris.”

In rebuttal–which Mr. Webb has not finished yet–Mr. Webb said the industry’s statements were was a legitimate First Amendment issue. He referred to testimony that the 1988 report used the word “addiction” for policy and communication reasons, rather than because the criteria for addiction were met. “It cannot be fraud because the industry disagreed with the Surgeon General’s policy and communications decision. . . . that puts us in the middle of a racketeering charge because we disagreed?”

Mr. Webb argued that there was a legitimate reason for Philip Morris to insist on the 1964 Surgeon General’s Report’s definition of addiction as including intoxication and serious withdrawal symptoms. He stated that only the 1988 Surgeon General’s Report actually defined addiction otherwise, and that previous reports Mr. Marine had mentioned–the NIDA and WHO reports–used the term “dependency,” not addiction, and that the WHO even today still recommends using “dependency” to describe addiction symptoms that do not include intoxication.

Mr. Webb referred to Dr. Henningfield’s testimony that the 1988 Surgeon General’s Report on addiction did not end the debate about how society should define addiction. “That testimony destroys the government’s theory that no one was debating this any more,” he said.

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