The Justice Department's Quack Remedies

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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)."

NEXT: Mises Wept

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  1. Given the amount of money and time the cigarette makers devoted to advertising aimed at young people, I don’t find the assertion that advertising doesn’t influence youth smoking rates very credible.

  2. I think it’s great, Mr. Sullum, that you monitor the blogs of anti-tobacco folks like this. Know your enemy.

    “I don’t find the assertion that advertising doesn’t influence youth smoking rates very credible.”

    So joe, would you then say that the youth of our country are morons easily brainwashed by the media and big corporations? I would give them a little more credit than that.

  3. Ah, the excluded middle. The last refuge of someone with his back to the wall.

    Not only do I think they’re brainwashed morons, but I want to put them all in camps and kill them. Like Hitler. Or Stalin. No, more like Hitler.

  4. That’s fair. I was being extreme in my description, of course, but I’m glad you get the idea.

    But I’ll bet that youth smoking rates have dropped like a stone ever since those “truth” commercials starting coming out. 🙂 I guess you need to do the right kind of brainwashing.

  5. “I don’t find the assertion that advertising doesn’t influence youth smoking rates very credible.”

    I do. People decide to smoke or not based on peer behavior. Ads just steer them to brands.

  6. Y’know, with the government latched onto the neck of tobacco companies like a starving vampire, I think it might be amusing if the cigarette companies folded. Just packed up, locked the doors and went out of business.
    Wouldn’t that make everyone happy? No evil giant corporations, no ads, no cigarettes to kill people, no second hand smoke. No need to pass any more smoking laws. Done.

  7. Not only do I think they’re brainwashed morons, but I want to put them all in camps and kill them. Like Hitler. Or Stalin. No, more like Hitler.

    That’s how I feel when I make the mistake of going to a movie on a Friday night:)

    I’m inclined to agree with RC that peer pressure has a far greater influence on whether kids smoke than advertising does. I can’t even remember any smoking ads from when I grew up, but I can remember plenty of kids(in middle school) who smoked to be like the teens.

  8. I think it might be amusing if the cigarette companies folded

    I agree, that would be interesting. But Fancisco D’Anconia doesn’t run the tobacco industry.

    The days when this sort of thing might actually happen have vanished. They vanished the day companies became “publicly held” rather than privately run.

    A Howard Hughes would tell Congress where the bear goes in the woods. A corporate board is entirely too much like a one-house Congress of its own.

    Publicly held corporations have their virtues, but long term intellectual decisiveness is generally not one of them.

    The problem with publicly owned corporations is that they are owned by “the public” (shareholders), which is “everyone who owns a share”. Which amounts in the end, to no one.

  9. Given the amount of money and time the cigarette makers devoted to advertising aimed at young people, I don’t find the assertion that advertising doesn’t influence youth smoking rates very credible.

    Of course, when anti-smoking zealots say “advertising aimed at young people,” they mean “advertising.” Unable to show that these ads were “aimed at young people,” they simply redefined “aimed at.”

  10. Or they redefined “child”. Time was a sixteen-yr-old was considered responsible enought to decide whether to smoke or not.

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