TUE, DAY 105: Fiore v. Wells over National Cessation Program

May 17, 2005 12:46 pm by Gene Borio

This moring, Dr. Michael Fiore testified about to his recommended remedy to create a “comprehensive national cessation program” which would provide and promote ” barrier-free accessto cessation treatments for all Americans, regardless of geographic location, socioeconomic status, or background.”

Dr. Fiore’s program, which would cost $5.2 billion a year for 25 years (for a grand total of $130 Billion, according to Philip Morris USA attorney Ted Wells), would involve:

(1) a National Tobacco Quitline Network to provide universal access to evidence-based counseling and medications for tobacco cessation;

(2) a Media Campaign to help Americans quit using tobacco

(3) Cessantion Research–a new, broad and balanced research agenda to achieve future improvements in the reach, effectiveness and adoption of tobacco dependence interventions across both individuals and populations; and

(4) Clinician Training: training and education to ensure that all clinicians in the United States have the knowledge, skills and support systems necessary to help their patients quit tobacco use.

Mr. Wells is in the process of attempting to show that, with all the services currently being offered by HMOs, Medicare, Medicaid, DHHS and the states, it would appear that virtually all smokers (and though Mr. Wells hasn’t added up his figures yet, seemingly 3/4 of all nonsmokers) already have cessation coverage, at least to some extent.

“Barrier-free” access to cessation services is an important aspect of Dr. Fiore’s plan. Mr. Wells established in cross examination that Warren Buffett, “one of the richest people in the world,” would be able to call the proposed national quitline and attain medication and counseling–on the tobacco industry’s dime! I know Dr. Fiore emphasizes the need to expand the “reach” of cessation programs to subpopulations, but the thought of having to subsidize the cheap-skate Warren Buffetts of the world in their cessation efforts must really gall the tobacco companies.

As far as the all-important question of how this “remedy” would relate to the RICO requirement to “prevent and restrain” future violations, Dr. Fiore’s Expert Report states,

It is my understanding that one of the goals of a cessation program will be to prevent and restrain future conduct by defendant tobacco manufacturers through the reduction or elimination of smoking within many groups.

Though the above statement makes little sense to me, there was an extraordinary number of onlookers at the trial today. It’s possible the Defendants believe that this “remedy” is the most practical threat to their bottom line that could emerge from this phase of the trial.

**———————————————————

“I’ll tell you why I like the cigarette business. It costs a penny to make, it sells for a dollar, it’s addictive, and there’s fantastic brand loyalty.”

– Warren Buffett, The Economist, 1992.

3 Responses to “TUE, DAY 105: Fiore v. Wells over National Cessation Program”

  1. tobacco observer Says:

    The remedies in question simply don’t make any legal sense.

    The requirement of these remedies under RICO 1964(a) is that the remedies act to prevent and restrain future violations of the RICO act. The point of this whole exercise is that the gov’t is asking Judge Kessler to intervene in the alleged ongoing criminal conspiracy specifically to prevent future racketeering activity.

    The problem here is that selling cigarettes (and smoking them) is perfectly legal! Forcing tobacco to fund programs designed to reduce the number of smokers, though perhaps admirable from a public health standpoint, IN NO WAY addresses ongoing or likely future racketeering violations. The DCCA made this crystal clear in their decision: remedies designed solely to “punish” tobacco, or to inflict economic “pain” are absolutely NOT permitted. If the alleged RICO violations concern tobacco marketing, the proposed remedies have to address tobacco marketing.

    The fact that the gov’t is now resorting to this nonsense means one of two things. The gov’t lawyers might simply not understand the DCCA’s decision on permissible remedies in civil RICO disgorgement cases, and Kessler’s requirement that they follow it. That’s unlikely; they are not incompetent.

    More reasonably, this shows the inappapropriateness of pursuing this issue via the civil RICO statutes. After the DCCA took away that ridiculous threatened $280 billion dollar disgorgement “hammer”, the gov’t simply has nothing left to ask for!

  2. tobacco observer Says:

    The remedies in question simply don’t make any legal sense.

    The requirement of these remedies under RICO 1964(a) is that the remedies act to prevent and restrain future violations of the RICO act. The point of this whole exercise is that the gov’t is asking Judge Kessler to intervene in the alleged ongoing criminal conspiracy specifically to prevent future racketeering activity.

    The problem here is that selling cigarettes (and smoking them) is perfectly legal! Forcing tobacco to fund programs designed to reduce the number of smokers, though perhaps admirable from a public health standpoint, IN NO WAY addresses ongoing or likely future racketeering violations. The DCCA made this crystal clear in their decision: remedies designed solely to “punish” tobacco, or to inflict economic “pain” are absolutely NOT permitted. If the alleged RICO violations concern tobacco marketing, the proposed remedies have to address tobacco marketing.

    The fact that the gov’t is now resorting to this nonsense means one of two things. The gov’t lawyers might simply not understand the DCCA’s decision on permissible remedies in civil RICO disgorgement cases, and Kessler’s requirement that they follow it. That’s unlikely; they are not incompetent.

    More reasonably, this shows the inappapropriateness of pursuing this issue via the civil RICO statutes. After the DCCA took away that ridiculous threatened $280 billion dollar disgorgement “hammer”, the gov’t simply has nothing left to ask for!

  3. krueger Says:

    Once again, I’m reminded of legal analysis by financial analysts.

    “Tobacco analysts…are all keen students of law, as they must be since their industry’s outlook is completely dominated by its legal issues. But they always seem to read the law very narrowly, in the way that favors their clients, er, I mean companies.”

    Wake-Up Call / The Tobacco Tar Pit, David Smith, July 17, 2000

    Reading RICO remedies as limited to nothing that would hurt Big Tobacco, seems like reading the law very narrowly in the way that favors Big Tobacco.

    It’s possible that RICO remedies will hurt RICO violators. It happens.

    I’m always amused by the “tobacco is legal product you know” argument. So’s drink. So are cars. Drunk driving, it turns out, is against the law.

    Guess how far you get arguing you can’t be punished for drunk driving because drink and cars are legal products. Turns out that particular legal analysis doesn’t impress the court a whole bunch. But don’t take my word, go ahead tell the court it doesn’t make any legal sense.

Leave a Reply

The primary purpose of this site is to provide information in a timely manner. Postings should be informative. The usual rules apply: No libel, no profanity, no personal abuse, keep it on topic, and short.

If you are scheduled as a court witness, CHECK with your lawyer before posting anything here!