But of course it’s the other way around. “With their army of top-flight corporate defenders, the tobacco companies have far outnumbered and clearly outspent the government”
Myron Levin, LA Times, September 12 2004.
available at http://www.no-smoking.org/sept04/09-13-04-5.html

“Federal gov’t that brought this case actually makes more money from its excise taxes on each pack of cigarettes sold in the USA ”

You might want to read what I wrote.

Yes indeed the Federal government gets money from this product.

Does the Federal government engineer slow poison for addiction?

That’s what Big Tobacco does to make its money.

That’s what I wrote.

The federal goverment didn’t make Big Tobacco engineer the product for nicotine addiction. No one made Big Tobacco do that. Big Tobacco chose to do that. You might say it was an adult choice.

Big Tobacco chose to develop genetically engineered high-nicotine tobacco plants.

Big Tobacco chose to add ammonia to its product to “free base” nicotine:

http://www.pulitzer.org/year/1996/national-reporting/works/impact.html

Big Tobacco chose to mount a large, long term, sophisticated research campaign to engineer the product for nicotine delivery:

http://tobaccodocuments.org/profiles/nicotine_manipulation.html

http://tobaccodocuments.org/product_design/00052845-2846.html

And Big Tobacco chose to hide all this, cover it up, lie about it to the public, the Congress, and the courts.

Big Tobacco goes way, way beyond “selling a legal product”.

However “selling a legal product” is a wonderful catchprase in Big Tobacco’s PR. The PR can be summarized as:

“…the tobacco industry’s cosy explanation of itself - as the supplier of a legal product used for widely-enjoyed social habit by adults who are fully aware of the risks and choose to take them to experience the pleasures.

When you take a good look at this industry, see what it says inside the industry:

“Instead a much darker explanation emerges: it is a predatory industry whose market dynamics demand that it recruits young people. It does this by deploying vast promotional expenditures to create, communicate and amplify a set of positive values associated with the product. Once the glamour phase subsides, nicotine addiction takes over making the customer dependent on the product and securing a profitable cash flow. Trapped by nicotine addiction, the smoker is subject to a variety of sub-lethal illness which culminate in a one in two probability of death through smoking-related disease. The smoker’s death means a replacement customer must be found - and the cycle begins again.”

Tobacco Explained: The truth about the tobacco industry in its own words. June 25, 1998
ASH-UK
http://www.ash.org.uk/html/conduct/html/tobexpld0.html

Big Tobacco is not in court for selling a legal product. In this case or any other.

Big Tobacco is in legal trouble for what it did and does that leaves “selling a legal product” far behind.

“giving or selling cigarettes to minors is a crime in every state of the Union and has been for decades.”

“If kids are smoking, its because individual adults are breaking the law.”

Ah, more Big Tobacco PR! The fantasy: it’s the seller’s fault, the parent’s fault, the kid’s fault, the kid’s peers fault, society’s fault. It’s everybody’s fault but ours. We in the industry are horrified that anyone would let kids have cigs! Right.

The reality: the tobacco industry:

* Examined young people as young as five – some studies did not even set a lower age limit. As one executive says “they got lips, we want them”.

* Thought about using honey and comic strip, as well as advertising, to entice youngsters to smoke.

* Looked at ways of preventing teenagers from quitting.

* Undertook studies how to manipulate pubescent/teenage anxieties into making people smoke. Examined the attitudes, aspirations, and lifestyles of the young and how to exploit them. One document says the company needs to “Create a Living Laboratory”.

Previously secret tobacco industry documents show that:

* Marketing executives set out to present cigarettes as part of adulthood initiation - an illicit pleasure, which like sex, is one of a few initiations into the adult world.

* Advertisers set out to equate cigarettes with rebellion, self-expression, self-confidence, independence, freedom, adult identity, masculinity for boys and femininity for girls.

* Two of the most successful advertising campaigns: Marlboro’s Cowboy and RJ Reynolds’ Old Joe Camel pitched their appeal directly to youth.

* The companies advertised in sports magazines and sponsored motor racing as new ways to market to youth

ASH-UK
Tobacco Explained: 3. Marketing to children
http://www.ash.org.uk/html/conduct/html/tobexpld3.html

Who are candy flavored cigarettes for?

http://www.usatoday.com/news/health/2005-01-05-smokes-usat_x.htm

“It’s a well-known fact that teen-agers like sweet products. Honey might be considered”
1972 Brown & Williamson memo, among documents released by U.S. Rep. John Conyers in Feb., 1998

Why did Philip Morris secretly place its products in more than 191 movies, including Grease, Rocky II, Crocodile Dundee, Die Hard, Who Framed Roger Rabbit, and Field of Dreams?

“Marlboro’s phenomenal growth rate in the past has been attributable in large part to our high market penetration among young smokers … 15 to 19 years old . . . my own data, which includes younger teenagers, shows even higher Marlboro market penetration among 15-17-year-olds.”

“The teen-age years are also important because those are the years during which most smokers begin to smoke, the years in which initial brand selections are made, and the period in the life-cycle in which conformity to peer-group norms is greatest”

1975 report from PM researcher Myron E. Johnston to Robert B. Seligman; Richmond Times-Dispatch 05/09/98

“Evidence is now available to indicate that the 14-to-18- year-old group is an increasing segment of the smoking population. RJR-T must soon establish a successful new brand in this market if our position in the industry is to be maintained over the long term.”

1976 Claude Teague draft report, “Planning Assumptions and Forecast for the Period 1977-1986 for R.J. Reynolds Tobacco Company.”

“The adolescent seeks to display his new urge for independence with a symbol, and cigarettes are such a symbol since they are associated with adulthood and at the same time adults seek to deny them to the young.”

“Since how the beginning smoker feels today has implications for the future of the industry, it follows that a study of this area would be of much interest. Project 16 was designed to do exactly that –learn everything there was to learn about how smoking begins, how high school students feel about being smokers, and how they foresee their use of tobacco in the future.”

“Serious efforts to learn to smoke occur between ages 12 and 13 in most cases.”

“Ads for teenagers must be denoted by lack of artificiality, and a sense of honesty”

“Project 16,” Oct. 18, 1977 Kwechansky Marketing Research Inc. Report for Imperial Tobacco Limited

That’s the reality.

The fantasy: oh gosh we hate to see kids smoke, we’re from the tobacco industry and we’re here to help you. There should be laws stopping kids from smoking! There are laws! We support those laws!

The reality: Big Tobacco influences government to pass only weak youth access laws that will be ineffective. An example given by Victor Crawford, a former industry lobbyist:

“…you can’t get a bill through making the owner responsible. We wouldn’t let you.”

http://www.gaspforair.com/gasp/gedc/artcl-new.php?ID=76

The reality: Big Tobacco depends on getting tobacco product to kids and getting kids addicted to it. Otherwise the tobacco industry would cease to exist as we know it.
“Getting young people to start smoking is vitally important to the survival of the tobacco industry.”

http://www.yale.edu/ynhti/curriculum/units/1996/2/96.02.03.x.html

http://www.health20-20.org/Dewees.htm

http://www.tobacco-on-trial.com/archives/2005/04/06/its-only-brand-switching

That’s the reality.

But if you prefer the fantasy, be my guest! Smoking has nothing to do with $12 billion a year of advertising, marketing, and promotion! Smoking has nothing to do with addictive product! Smoking has nothing to do with how Big Tobacco engineers product for addiction! Kids smoking has nothing to do with how Big Tobacco markets to kids! That’s all just a coincidence! Which Big Tobacco greatly regrets! It’s a legal product, you know! Ah, fantasy. So pretty.

The reality is uglier.

I suspect that in the end there probably won’t be any finding of liability under civil RICO 1964(a) and the Department of Justice won’t end up with any of the cash it has been trying to grab from the Tobacco industry for the past six years.

Not for lack of trying, mind you; just for lack of a fundamental civil RICO case on the gov’ts part. You can’t build a silk purse out of a sow’s ear, and the gov’t appears to have picked the wrong law, and the wrong industry to bully this time around.

>> It may in essence be perfectly legal in this country to make massive profits by engineering slow poison for addiction.

Massive profits? That’s a curious thing to say considering the Federal gov’t that brought this case actually makes more money from its excise taxes on each pack of cigarettes sold in the USA than the tobacco companies do in profits. The State gov’ts, in fact, make several times more “profits” from the sale of cigarettes than the tobacco companies do. So in every real sense the Tobacco industry is only a minority partner in the tobacco business. The overwhelming majority of the “profits” go to the gov’t.

Of course its perfectly legal to sell cigarettes, as it has been since the inception of the United States and before. If you don’t like them, you certainly aren’t obligated to buy or smoke them, just like you don’t have to buy liquor or drink it.

If you don’t like the “engineered” kind of cigarettes, or alternatively think the poison is too slow for your taste, you can buy any kind you like better, including “all natural” kinds, unfiltered cigarettes, high tar, low tar, or a whole host of other brands. Or you can stick to cigars or even pipe tobacco if you choose.

>>There may be no real legal problems with getting 3000 kids a day addicted to a product that will end up killing 1000 of them.

To the contrary. Apart from the obvious fact that nobody is forcing anyone to smoke anything, giving or selling cigarettes to minors is a crime in every state of the Union and has been for decades.

Point in fact, most if not all of the the large domestic tobacco companies that are defendants in this case don’t actually sell cigarettes retail at all. They sell only to distributors, who then sell to retailers, etc. If kids are smoking, its because individual adults are breaking the law. Perhaps the Federal and State gov’ts ought to be chasing them rather than the manufacturers.

(Incidentally, that would be “kids” under the age of 18 who are smoking illegally, not legal smokers aged 18-21 whom the gov’t arbitarily defined as “youth” for purposes of this RICO lawsuit).

Thank you. Here’s a more modern mistake: claiming the Campaign for Tobacco-Free Kids aims to ban tobacco:

http://www.tobacco-on-trial.com/archives/2005/04/07/day-90-szymanczyk-grilled-on-corporate-responsibility#comment-396

“Does that have anything to do with this case?”

A mistake with more to do with this case: claiming that Big Tobacco had not yet been found liable for anything in this case:

http://www.tobacco-on-trial.com/archives/2005/07/19/doj-files-tough-scotus-petition#comment-581

Getting the facts wrong, again and again and again: might not be the best basis for analysis.

But all the same, you may be right. Big Tobacco may beat the rap. It may in essence be perfectly legal in this country to make massive profits by engineering slow poison for addiction. There may be no real legal problems with getting 3000 kids a day addicted to a product that will end up killing 1000 of them.

With respect to actual legal errors, I think this is a bit more timely and relevant to this website. . .apparently the legal “talent” from the Tobacco liability project was certain that the US Supreme Court would accept reject this appeal:

http://www.tobacco.neu.edu/litigation/cases/pressreleases/certpetitionfiled.htm

“There are several reasons why the U.S. Supreme Court will accept the DOJ’s Petition and review the decision: a) There exists a conflict among the federal circuits on the question of whether disgorgement is an available remedy under Civil RICO; b) the Court of Appeals decision eviscerates Civil RICO claims brought by DOJ against any defendant and would effectively mean that the government would no longer have this legal tool available to fight corporate fraud; and, c) historically, the U.S. Supreme Court has been more apt to grant review of petitions from the DOJ than petitions from private parties, because the underlying cases often have significant law enforcement implications, as is the case here.”

So it appears that once again the “professional” legal talent from the anti-tobacco litigation lobby has been outsmarted by a bunch of “would-be” two-bit legal hacks from Wall Street. Not the first time this has happened during this case, and probably not the last.

>>I expect tobacco “analysts” now to gush that Big Tobacco’s legal woes are behind it. A story we’ve heard from those same analysts many times before.

I doubt any of them are going to go that far, but point in fact, with an effectively permanent loss of this disgorgement remedy, any chance of a bankrupting judgment or MSA-like tax-penalty in this case has just evaporated. At *best* all the gov’t can hope for now is a few $$ billion per year spread out over many years over the entire industry, and even that appears unlikely given the specific (and now absolutely binding) constraints of the DCCA’s ruling on available remedies in civil disgorgement cases.

So indeed, the legal outlook for the Tobacco industry today actually is arguably significantly better than it was yesterday.

In the meantime, the gov’ts case here has just received another “body blow”, this one a bit harder than the last. With its grossly impermissible remedy requests it appears clear that the gov’t had pinned all its hopes on this SCOTUS long-shot. Now they don’t have that, and there is no more time or room for them to ask for anything else.

As usual?

Like, say, oh, Fitch analyst Judi Malter?

December 16th, 2002: Malter reports “Major tobacco firms consistently appeal adverse verdicts and they have not lost a case on appeal which resulted in a payout”.

Except they had. March 2001, Brown and Williamson, having lost its final appeal, paid $1,087,191 to Grady Carter.

Perhaps that’s why columnist David Smith observes:

“Tobacco analysts are a unique and distinctive group on Wall Street. For one thing, they would to a man prefer to flack for the tobacco industry than actually make a correct investment recommendation and be seen to make one. As a result of being so wrong for so long, Wall Street’s tobacco analysts have probably cost investors as much money as anyone engaged in lawful activities there ever has…”

“The other unique feature of the tobacco analysts is that they 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

I expect tobacco “analysts” now to gush that Big Tobacco’s legal woes are behind it. A story we’ve heard from those same analysts many times before.

But hey, they may be right. It may be perfectly legal in this country to engineer addictive slow poison and get 12 year olds addicted to it. No laws broken here!

It appears that in this case the “tobacco analysts” (as usual) were correct about this. I believe most of them predicted that the SCOTUS would reject this appeal, just as I have done on this site several times previously. No “narrow reading” was necessary. As I detailed above, the gov’t request was fairly strained, and had it actually have been granted, the ensuing situation would have been literally unprecedented in the 200+ year history of the Supreme Court.

This time, the only ones who thought the DOJ was going to get their appeal were a bunch of anti-tobacco activists, who (as usual) have substituted wishful thinking about the destruction of the industry for sound legal analysis.

Now lets see what Judge Kessler has to say about Tobacco’s petition for partial summary judgment on the smoking cessation remedy.

With the DCCA’s ruling now the immoveable law for the remainder of her time with this case, I think Kessler will have no choice but to kneecap the remainder of the gov’t case by eliminating that illegal remedy. If it happens, counting this SCOTUS rejection as the second, that would be the third “body blow” this case will have received, and it could put the case “down for the count”.

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

Certainly the gov’t would, considering that in their petition they have asked the Supreme Court to make the simplifying assumption that the case is already over and that they have already won!

The Supreme Court generally won’t even consider cases without a final decision, except in fairly extraordinary circumstances. In this case, the gov’t is asking the SCOTUS to make a decision about a particular possible remedy, even before its been shown that there is any liability that needs to be remedied. In other words, even if the SCOTUS were to accept certiorari, there is a not insignificant chance that the whole appeal will become moot if Tobacco isn’t found civilly liable under the RICO act.

So to circumvent this glaring and fundamental weakness in their petition, the gov’t is playing a little “trick”. The DOJ is acting as if they have already won their case, even before its over. Direct quote from the gov’ts petition:

****The government has put forward extraordinarily extensive evidence in
the nine-month trial that respondents have violated RICO. >, the court of appeals’ decision will severely constrain the remedies available to the government.****

In terms of “prejudice”, I think it would be impossible to find a more blatant example than this one. The gov’t has claimed that they’ve compellingly “shown” (ie proven) liability, even though no such judgment has been made or entered yet by the trial judge!

Now, in direct response to this claim, Tobacco has presented a summarized version of its defense case, to rebut this presumption.

>>the Defense drops its hammer: an argument that seems outside of the legal parameters, but that may ring resoundingly for this non-activist Court: [If the gov’t is unhappy with RICO they should be asking Congress, not the SCOTUS, to change it].

This is probably the very most fundamental argument one can put in front of the Supreme Court, namely that the law is quite clear and that changing it a function of the legislature, not the judiciary.

Again, the gov’t is claiming in their petition that civil RICO disgorgement is a critically important tool, absolutely necessary here for the public good. This is what they said:

***the government faces the prospects that it cannot effectively compel RICO violators to address the consequences of their statutory violations and that those violators may retain the profits of their unlawful activity no matter how destructive the consequences for the American public as a whole. Congress did not intend that result, which in this case could prevent the government from formulating effective equitable remedies and obtaining disgorgement of many billions of dollars of proceeds that respondents obtained through the violation of federal law.***

So the DOJ is making an argument about Congressional intent. They are saying that without civil disgorgement the RICO act is toothless and worthless. Its a pretty strange claim considering that in the 30+ history of the RICO act civil disgorgement has not been applied to *ANY* defendant, even ONE time.

Tobacco is rebutting this in the broad sense, making the same argument they used to win in front of the DCCA, namely that the civil RICO act specifies various remedies, but not disgorgement, and if the Congress intended that remedy to be available, they would have simply said so.