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.

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  1. This is probably why people want to live in cities so much; try defending smoking to anyone but a smoker and they look at you like you eat children. And since those whining hags called “soccer moms” have relegated themselves to the ‘burbs, I hear a lot less complaining about smoking.

  2. Okay, I don’t know if that’s the same as but IMO free speech stops at fraud. If in fact the cigarette companies did knowingly lie and deceive customers (key words being “if” and “knowingly”), they should be punished.

  3. How about a moratorium on anyone with the last name Kessler having anything to do with tobacco litigation.

  4. I think I remember some Hit and Run commenter suggesting that a cigarette manufacture come out with a new brand: Death Sticks. They would be sold in a black box with a scull and cross bones logo. On the package and every add, there would be large letters proclaiming: THESE WILL KILL YOU.

    The fun part will be watching the brains squirt out the ears of all the nanny-staters as they go apoplectic over the glorification of death as a marketing tool. Which is of course the point, people don’t smoke because of Joe Camel or the Marlboro man. Everyone still puffing today has known that cigarettes kill since before they first started.

  5. Warren,

    I haven’t looked for them in a while, but Black Death cigarettes have been on the market for at least 10 years.

  6. As goes smoking so goes freedom, liberty and individual choice.

  7. raises serious questions under the First Amendment

    What, is that old thing still on the books?

  8. I’m still waiting for Carcinoma Angels to hit the stores.

  9. Since when is consumers demanding quality products news?

    ”Making the World Safe for Cigarettes”

    Forbes Sept 27 1997

    Calls for high nicotine ,low tar tobacco biotech, and putting gigabuck Big Tobacco settlements in the lab coat pockets of cancer cure researchers rather than the advertising acounts of fuming authoritarians like Ayatollah Bloomberg.

  10. This is why American Justice blows chunks:

    How can selling low-tar smokes amount to racketeering?

    Jacob, I like your spin better than the one I saw yesterday.

  11. “The nature and meaning of addiction, like the risks posed by secondhand smoke, is a subject of legitimate, ongoing controversy.”

    Well, maybe. Sorta like the legitimate debate between creationists and Darwinists, or the debate about anthropic climate forcing.

  12. No, it’s a different kind of controversy from the ones Mainstream writes of. I for one don’t think it’s a word that deserves to exist. It either describes a phenomenon that doesn’t actually exist, or something that doesn’t deserve its own, fancy word.

    There’s some of the same kind of problem in the creation debate, but none of it in the climate forcing debate. “How did there come to be such a variety of different living things?” is a legitimate question which has no obvious, commonplace answer that any child could give, although some of the arguments might have to do with semantics. “How do people come to do certain things over & over?” is a question that could have a hidden and surprising answer, but it doesn’t. In reality it has an answer which on one level is commonplace — “Because they like it.” — and on another level is complicated but without specificity to the question — i.e. fine details of neurophysiology, which apply to all behavior.

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