Even a Victory Would Be Embarrassing

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The trial in the Justice Department's lawsuit against the leading cigarette manufacturers is winding down, with the government's last witness, Matthew Myers of the Campaign for Tobacco-Free Kids, testifying yesterday. Myers was there to outline the differences between the 1997 proposed settlement resolving state lawsuits against the tobacco industry, which fell apart when Congress declined to go along, and the 1998 settlement, which was finalized without congressional approval even though it effectively imposed a national cigarette tax and national restrictions on cigarette advertising and promotion. The New York Times explains some of the ways in which the 1998 agreement was laxer than the 1997 agreement:

For example, the 1998 agreement allows each company to attach a cigarette brand name to one event or series of events, like the Winston Cup auto races. The 1997 agreement would have banned all sponsorships.

The 1998 agreement did not address in-store cigarette advertising. The 1997 agreement would have banned the use of color and set limits on the size and number of signs.

The 1998 agreement allowed free samples to be distributed in adult-only sites. The 1997 agreement banned all free samples.

The point of Myers' testimony was to show there are some additional restrictions that U.S. District Judge Gladys Kessler could impose as remedies for the industry's "racketeering." So this is what the case comes down to, after six years and hundreds of millions of dollars: no more cigarette samples in bars, color-free retail signs, and a new name for a car race. And maybe yet another stop-smoking program. That's assuming the government wins the case and gets everything it's asking for.

No matter what happens now, the Justice Department has suffered a humiliating defeat, which it richly deserves for pursuing a case that had no basis in the law. Even before the trial started, Kessler ruled that the government was not legally authorized to demand that the tobacco companies pay tens of billions of dollars for the cost of treating smoking-related illnesses under Medicare. This year a federal appeals court nixed the Justice Department's attempt to force "disgorgement" of $280 billion in allegedly ill-gotten gains, since no such money grab is permitted by the provisions of the Racketeer Influenced and Corrupt Organizations Act under which the government filed suit. Now the government is reduced to quibbling about the size of Marlboro signs at the 7-Eleven.

NEXT: Your Congress on Steroids

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  1. Now the government is reduced to quibbling about the size of Marlboro signs at the 7-Eleven.

    Which is actually a first amendment issue, hardly a quibbling issue. Especially when the government is trying to find yet another way to restrict it.

  2. I dunno. When I hear “Winston Cup” I don’t think about smoking. I think about jackasses going around in circles and the jackasses who enjoy watching the jackasses go around in circles. To be honest, it makes me want to have a drink.

  3. Yeah, it sure is good the feds are finally getting rid of the Winston Cup. Maybe NASCAR can get Nextel to sponsor it instead?

  4. We get it. Smoking is bad. Isn’t it time the two sides just sit down and smoke a peace pipe?

  5. jbk for chancellor!

  6. maybe here would be a good reminder about whom is responsible for this utterly doomed piece of public sector civil litigation: none other than Frank Hunger, Esquire. Brother in law to the esteemed Albert Gore, and Clinton’s AAG for the USDOJ Civil Division from whence this effort was launched. never would have seen the light of day but for Frank lighting a fire under that pup. he was going nuts in the halls of Justice about this, back in the day

    i remember someone testifying in the abstract about the possibility of settlement up on the hill, only to return to the office to get flogged within an inch of his life for even floating a balloon about it

  7. jbk for chancellor!

    If I must. But only until this pro-smoking Rebellion has been crushed.

  8. Adding damages to things that weren’t specified to be illegal before is total ex post facto. It’s crap. I have no beef if they want to outlaw smoking today, but charging tobacco companies retroactively is unconstitutional.

    Anyhow, I think they should just deal with the smoking “problem” the same way they should deal with all cases of hidden costs and free riders: tax the freeloaders. So, if for example, the average smoker ends up costing Medicaid $250,000 over the cost of a normal person, and we assume their lifespan is reduced by 5% and the average cost of life is $5 million, then we end up with a half a million dollars in tax per smoker. Let’s say that the same smoker smokes 30 cigs per day times 50 years. At a dollar a cig, that works out to a little more than $500,000. — Funding problem, solved. Of course, these numbers are all highly distorted for my own mathematical convenience, but there’s no reason the government couldn’t find some acceptable rate of tax to fund a healthcare trust fund.

  9. Dangerous road to tread, Carl.

    First, I notice you neglect to throw in a tax cut for non-smokers, so it looks like just another revenue grab.

    More fundamentally, anyone can play the actuarial game for their own ends. Don’t like video games? Tax ’em because they make our yout’ more sedentary and unhealthy. Junk food? Ditto? Meat? Ditto. You wanna death toll, take a look at cars, and say hello to the car tax.

  10. What funding problem are we talking about?

    I have never heard any compelling evidence that smoking related death is any more expensive to finance than non-smoking related death. Since healthcare costs rise faster than the base inflation rate, the sooner you die the cheaper you die, if the costs are the same for both types of death. Thus smokers are cheaper to see into the grave than non-smokers. Never mind social security, which smokers contribute to but see much less of, allegedly.

    As to the “cost of a life”, I have no idea of what this means, but if you mean “value of life” then I have to ask ( all ayn rand style), to whom? Surely you are not saying that people should pay the government to compensate the government for the loss of their own lives in which they have, more or less, the ultimate property interest, are you? Holey freakin’ moley, that makes no sense at all.

  11. It is a fact that Big Tabacco, through the years, has made very calculated and DELIBERATE actions to increase it’s market. It’s a fact that today’s cigarette tastes better and is more satisfying then 20 or even 10 years ago. Obviously, if a producer makes better cigaretts, it increases demand, and more people die.

    The government needs to do more.

  12. All substance prohibitions are unconstitutional. See the Ninth amendment. The fact that the governments have gotten away with it is evidence that we need a prisoner swap in the penitentiaries

  13. Everything we do has risk.

    I know a woman in her fifties with metastatic melanoma, a disease caused by excessive sun exposure. I live in Maryland. The state launched an aggressive ‘Reach the Beach” program some years ago to help the economy of Ocean City, encouraging people like her to spend more time in the sun, which she did. She owns a trailer there and spends a lot of time there on the beach.

    Now she will likely die from this miserable disease. Should the State of Maryland be held responsible? The state is at least partially to blame for her illness. As always, the deepest pocket pays the most. Maybe Maryland should take some of its tobacco settlement money and pay people injured by the sun at Ocean City.

    BTW, this same women was badly injured, almost paralyzed, this year by a runaway Ski Patrol stretcher sled at Snowmass. The state of Nevade has passed legislation severely restricting the rights of injured skiiers to sue. Otherwise, skiing would be too expensive and the economy of Nevada would be injured. She now lives in constant pain from this injury. I suspect that her estate will be able to get compensation from the Snowmass company, but the vast majority of injured skiers don’t get a cent. And, there are no restrictions on advertising ski vacations.

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