Cigarette Makers Can't Be Forced to Pay Money. Can They Be Forced to Pay Lip Service?

The Justice Department's "victory" in its RICO lawsuit against the leading cigarette makers looks pretty hollow. The government did not get an industry-bankrupting order requiring the companies to disgorge $280 billion in "ill-gotten gains"—a demand the U.S. Court of Appeal for the D.C. Circuit nixed last year. It did not get $130 billion for smoking cessation programs and anti-smoking programs, a demand the Justice Department itself already had reduced to $10 billion in light of the D.C. Circuit's ruling, which said any remedies had to be "forward-looking," aimed at restraining future misbehavior. It did not even get $10 billion, or $5 billion, or $1 billion. In fact, it did not get a single cent, because U.S. District Judge Gladys Kessler concluded that the D.C. Circuit's decision barred her from ordering any monetary remedies at all. Instead Kessler ordered the tobacco companies to apologize, in essence, for being so full of shit over the years; to stop marketing cigarettes identified as "low tar," "light," or "natural"; and to make corrective statements in ads, in package inserts, and on their Web sites about the hazards of smoking, the addictiveness of nicotine, and the dangers posed by secondhand smoke.

The second part looks ripe for challenge on appeal, since the federal government itself has been intimately involved with "low-yield" cigarettes, which seemed like a good idea at the time but did not offer the expected health advantages (mainly because smokers tend to compensate for lower nicotine levels by smoking more intensely). The government established the official "FTC method" for measuring tar and nicotine yields, and it not only permitted but required cigarette makers to advertise them. Now Kessler is saying that calling attention to those numbers is inherently misleading. As for the "natural" label, it is routinely accompanied by a disclaimer saying it does not mean the product so identified is safer than conventional cigarettes.

Forcing the tobacco companies to make certain statements about the facts of smoking as Kessler sees them raises serious questions under the First Amendment, which restricts the government's ability to compel speech as well as its ability to squelch it. These are not like the warning labels required by statute, which speak in the government's voice. Rather, Kessler is trying to put words into the mouths of cigarette makers, which is especially problematic when the things she wants them to say are not necessarily true. While the health hazards of smoking are well-established, the dangers of secondhand smoke are much less certain. No one disputes that smoking is addictive in the sense that people often become strongly attached to it and have difficulty giving it up. But the same could be said of anything that provides pleasure or relieves stress. The nature and meaning of addiction, like the risks posed by secondhand smoke, is a subject of legitimate, ongoing controversy. Compelling tobacco companies to pay obeisance to the officially recognized truth of such matters seems constitutionally problematic, to say the least.

My most recent columns on the case are here and here. Michael Siegel, a strong critic of both the tobacco industry and the lawsuit, comments on the outcome.