The Justice Department's Quack Remedies

On his tobacco policy blog, anti-smoking activist Michael Siegel argues that U.S. District Judge Gladys Kessler is unlikely to approve any of the monetary remedies sought by the Justice Department in its RICO lawsuit against the leading tobacco companies and that, if she does, her order is unlikely to be upheld on appeal. The government wants the industry to pay for a smoking cessation program and for an anti-smoking propaganda campaign aimed at teenagers. It also proposes a system of fines if specified goals for reducing smoking among 12-to-20-year-olds are not met. But as the U.S. Court of Appeals for the D.C. Circuit emphasized when it rejected the government's attempt to force "disgorgement" of $280 billion in "ill-gotten gains," the RICO provision under which the Justice Department is suing allows only remedies that are designed to prevent future "racketeering acts" (in this case, the government has argued that deceptive marketing of cigarettes, including marketing aimed at minors, amounts to racketeering).

As Siegel points out, the Justice Department does not even bother to argue that a smoking cessation program would restrain future misconduct. Instead it says the program would reduce the impact of such misconduct, which is not the sort of remedy authorized by RICO.

The government claims anti-smoking ads would discourage marketing to minors by reducing the impact of such marketing. But if the ads were effective, says Siegel (who is skeptical that they would be), the tobacco companies would have an incentive to intensify rather than reduce their efforts to recruit new smokers.

The fine proposal comes closest to the sort of remedy permitted by RICO, since it is aimed at punishing, and thereby deterring, future marketing to minors. But as Siegel notes, the connection between the industry's marketing efforts and underage smoking is too loose to justify fines that attribute changes in the latter to changes in the former: Smoking by teenagers could go up, remain the same, or go down regardless of what the industry does.

In short, says Siegel, "none of the monetary remedies that the government has proposed is likely to be ordered by Judge Kessler and/or upheld by the D.C. Court of Appeals because they either are: (1) designed to provide equitable relief for, rather than prevent future RICO violations (smoking cessation); (2) ineffective at preventing future RICO violations (public education and counter-marketing campaign); or (3) far too indirectly tied to future RICO violations to make them an effective preventive remedy (youth smoking reduction targets)."