The Justice Department's Case against the Tobacco Companies
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《新英格兰医药杂志》
The case brought by the Department of Justice against the tobacco industry — the largest civil litigation in U.S. history — has become mired in controversy. Projections suggest that about 23 million Americans, or one of every two current smokers, will die prematurely because of a disease caused by tobacco use. The lawsuit called for actions to remedy harms that have resulted directly from misconduct on the part of the tobacco industry. Unfortunately, Justice Department attorneys shifted gears at the 11th hour, drastically reducing the remedies proposed by their own expert witness, and reports surfaced that government witnesses were pressured to water down their testimony. The reasons for this behavior remain murky, but the likely long-term effects seem clear: more latitude for the tobacco companies, more new smokers, and more smoking-related illness and death.
The origins of the case can be traced back to 1999, when in the wake of the Master Settlement Agreement of 1998 (which did not earmark monies for tobacco control), President Bill Clinton announced in his State of the Union address that the Justice Department would begin litigation against the tobacco companies. The initial filing in late 1999 was based on efforts to recover Medicare funds expended as a result of tobacco-caused illness and on the civil federal Racketeer Influenced and Corrupt Organizations (RICO) Act, which provides a mechanism for preventing and restraining unlawful racketeering activity.
After five years of preparation, the trial began in September 2004 and was divided into two parts — a liability phase and a remedies phase. Rulings regarding both phases are expected in late 2005. In the liability phase, the Justice Department focused on what it called the "seven pillars of fraud" in portraying tobacco-industry misconduct (see list). In response, the tobacco companies argued that, even if they had engaged in improper behavior in the past, they had ceased to do so after the Master Settlement Agreement and had become law-abiding corporate citizens.
The Seven Pillars of Fraud, or Alleged RICO Violations by the Tobacco Industry.
The proposed penalties presented by the Justice Department during the remedies phase of the trial were constrained by two prior court rulings. In 2000, presiding U.S. District Court Judge Gladys Kessler ruled that penalties in the case could not be used to offset Medicare costs. Then, in February 2005, with the trial in its fifth month, an appellate court decided that a $280 billion disgorgement remedy was not "forward looking" and would not fulfill its ruling that RICO remedies must "prevent and restrain" future wrongful conduct (a decision that the Justice Department appealed to the Supreme Court on July 18). The Justice Department responded by developing a new series of penalties, designed to limit future misconduct by the tobacco industry and to augment national tobacco-control efforts.
Beginning on May 2, 2005, witnesses for the Justice Department proposed future-focused remedies that included the continued disclosure of internal industry documents, prohibitions against marketing targeted at young people, the elimination of certain brand descriptors (such as "light") on cigarette packs, and the dismissal of the senior managers of tobacco companies.
One key remedy proposed as part of this new strategy was to provide evidence-based cessation treatment to all smokers who want to quit. This plan was based on components of the National Action Plan for Tobacco Cessation1 that had been prepared in 2003, at the request of Secretary of Health and Human Services Tommy Thompson, by a panel of tobacco-control and public health experts: the Subcommittee on Cessation of the U.S. Interagency Committee on Smoking and Health. The proposed four-part cessation remedy (the remedy was designed by Dr. Fiore, who was chair of the subcommittee and also served as an expert witness in the trial) included money for a barrier-free, comprehensive telephone "quit line" that would provide counseling and medication to the 10 percent of smokers projected to use it each year; a paid media campaign; smoking-cessation research; and clinical training. It was estimated that, to achieve its goals, this program would require $5.2 billion per year for 25 years (a total of $130 billion). Analysis presented at trial suggested that this evidence-based plan would ultimately reduce the number of smokers in the United States by almost 33 million (see graph).
Model of the Projected Effect of the Proposed Comprehensive National Cessation Program.
The model is based on data from the U.S. Census and the Centers for Disease Control and Prevention and assumes that there are currently about 47 million adult smokers, 33 million (70 percent) of whom report that they want to quit and are the targets of the proposed national cessation program. It is also assumed that approximately 3.7 percent of current smokers will continue to quit on their own each year, that approximately 1 million additional smokers will quit as a result of the national cessation program each year (as projected by the National Action Plan for Tobacco Cessation), that approximately 200,000 current smokers will die each year, and that approximately 734,000 persons will begin using tobacco each year but that 70 percent of them will later want to quit. This model has been adapted from U.S. Justice Department exhibit 18266.
The tobacco industry never questioned the scientific basis of the treatment program nor its projected efficacy. It did, however, question whether the treatment could reach the projected number of smokers, although the projections were based on actual rates of use of such treatment in the population and on expert testimony presented to the Subcommittee on Cessation.
During closing arguments in early June 2005, attorneys for the Justice Department stunned observers by reducing dramatically the amount they were requesting for a cessation remedy — to only $10 billion over a five-year period. In an effort to explain this move, senior Justice Department attorney Frank Marine stated in a letter to the Washington Post that the original $130 billion settlement was not sufficiently focused on future violations of the law and therefore was not in compliance with the requirement that remedies be forward-looking.2
This explanation was puzzling. The issue of whether the remedy was forward-looking was an old one for the Justice Department. In fact, on May 12, 2005, the department had filed a brief arguing that the $130 billion smoking-cessation program was indeed forward-looking and would prevent and restrain future wrongful conduct by the tobacco industry. It was unclear why they were suddenly backing down.
This retrenchment ignited a firestorm of controversy and produced additional evidence suggesting that the department was not pursuing a forceful prosecution of the case. Numerous press reports have indicated that political appointees in the Bush Justice Department may have ordered a reduction of the cessation remedy, over the strenuous objections of the career tobacco-team attorneys.3 According to a June 16, 2005, report in the New York Times, the team's lead attorneys, Sharon Eubanks and Stephen Brody, had warned, in an internal memo to Associate Attorney General Robert McCallum, Jr., that "we do not want politics to be perceived as the underlying motivation, and that is certainly a risk if we make adjustments in our remedies presentation that are not based on evidence." Even presiding Judge Kessler raised questions, stating, "Perhaps it suggests that additional influences have been brought to bear on what the government's case is."4 Moreover, three of the government's expert witnesses (Mr. Matthew Myers, Dr. Michael Eriksen, and Dr. Max Bazerman) were reportedly asked by Justice Department attorneys to soften their testimony (Myers, for example, was asked to change his recommendation for banning marketing to young people).
In response to the resultant protests, including some from members of Congress — such as Representative Henry Waxman (D-Calif.), Representative Marty Meehan (D-Mass.), Senator Tom Harkin (D-Iowa), Senator Frank Lautenberg (D-N.J.), Senator Richard Durbin (D-Ill.), Senator Edward Kennedy (D-Mass.), and Senator Ron Wyden (D-Ore.) — the Justice Department's Office of Professional Responsibility launched an investigation.5 Furthermore, six leading public health organizations (the American Cancer Society, the American Heart Association, the American Lung Association, Americans for Nonsmokers' Rights, the National African American Tobacco Prevention Network, and the Tobacco-Free Kids Action Fund) requested and were granted by Judge Kessler the ability to intervene as parties in the case, arguing that the government's proposed remedies no longer addressed the defendants' wrongful conduct.
These surprising actions raise concern about the current administration's commitment to a faithful pursuit of remedies and to saving or improving the lives of Americans who are addicted to tobacco. If there is a valid reason for the abandonment of the $130 billion smoking-cessation remedy, the Justice Department has failed to articulate it in a convincing manner. As a result, attention has focused on political influence within the department rather than on the compelling portrayal of tobacco-industry crimes presented by the tobacco-team attorneys. There is still some hope that Judge Kessler could impose a larger cessation remedy than the $10 billion requested or that the Supreme Court could reinstate the $280 billion disgorgement remedy. As we await these decisions, however, children continue to take up smoking, millions of people continue to die prematurely, tobacco companies continue to reap huge profits, and relatively little money is being used to help smokers quit.
Source Information
Dr. Fiore is the director, Ms. Keller the senior policy adviser, and Dr. Baker the associate director of the Center for Tobacco Research and Intervention at the University of Wisconsin Medical School, Madison.
References
Fiore MC, Croyle RT, Curry SJ, et al. Preventing 3 million premature deaths and helping 5 million smokers quit: a national action plan for tobacco cessation. Am J Public Health 2004;94:205-210.
Behind the Justice Department's shift on tobacco. Washington Post. June 15, 2005:A24.
Lichtblau E. Lawyers fought U.S. move to curb tobacco penalty. New York Times. June 16, 2005:A1.
Judge queries U.S. decision to slash penalty for tobacco firms. New York Times. June 8, 2005.
Waxman HA, Meehan MT. Letter from members of Congress calling on Justice Department to investigate whether government witness was pressured to weaken testimony. June 20, 2005. (Accessed August 3, 2005, at http://www.tobaccofreekids.org/reports/doj/letters/jarrett062005.pdf.)(Michael C. Fiore, M.D., M)
The origins of the case can be traced back to 1999, when in the wake of the Master Settlement Agreement of 1998 (which did not earmark monies for tobacco control), President Bill Clinton announced in his State of the Union address that the Justice Department would begin litigation against the tobacco companies. The initial filing in late 1999 was based on efforts to recover Medicare funds expended as a result of tobacco-caused illness and on the civil federal Racketeer Influenced and Corrupt Organizations (RICO) Act, which provides a mechanism for preventing and restraining unlawful racketeering activity.
After five years of preparation, the trial began in September 2004 and was divided into two parts — a liability phase and a remedies phase. Rulings regarding both phases are expected in late 2005. In the liability phase, the Justice Department focused on what it called the "seven pillars of fraud" in portraying tobacco-industry misconduct (see list). In response, the tobacco companies argued that, even if they had engaged in improper behavior in the past, they had ceased to do so after the Master Settlement Agreement and had become law-abiding corporate citizens.
The Seven Pillars of Fraud, or Alleged RICO Violations by the Tobacco Industry.
The proposed penalties presented by the Justice Department during the remedies phase of the trial were constrained by two prior court rulings. In 2000, presiding U.S. District Court Judge Gladys Kessler ruled that penalties in the case could not be used to offset Medicare costs. Then, in February 2005, with the trial in its fifth month, an appellate court decided that a $280 billion disgorgement remedy was not "forward looking" and would not fulfill its ruling that RICO remedies must "prevent and restrain" future wrongful conduct (a decision that the Justice Department appealed to the Supreme Court on July 18). The Justice Department responded by developing a new series of penalties, designed to limit future misconduct by the tobacco industry and to augment national tobacco-control efforts.
Beginning on May 2, 2005, witnesses for the Justice Department proposed future-focused remedies that included the continued disclosure of internal industry documents, prohibitions against marketing targeted at young people, the elimination of certain brand descriptors (such as "light") on cigarette packs, and the dismissal of the senior managers of tobacco companies.
One key remedy proposed as part of this new strategy was to provide evidence-based cessation treatment to all smokers who want to quit. This plan was based on components of the National Action Plan for Tobacco Cessation1 that had been prepared in 2003, at the request of Secretary of Health and Human Services Tommy Thompson, by a panel of tobacco-control and public health experts: the Subcommittee on Cessation of the U.S. Interagency Committee on Smoking and Health. The proposed four-part cessation remedy (the remedy was designed by Dr. Fiore, who was chair of the subcommittee and also served as an expert witness in the trial) included money for a barrier-free, comprehensive telephone "quit line" that would provide counseling and medication to the 10 percent of smokers projected to use it each year; a paid media campaign; smoking-cessation research; and clinical training. It was estimated that, to achieve its goals, this program would require $5.2 billion per year for 25 years (a total of $130 billion). Analysis presented at trial suggested that this evidence-based plan would ultimately reduce the number of smokers in the United States by almost 33 million (see graph).
Model of the Projected Effect of the Proposed Comprehensive National Cessation Program.
The model is based on data from the U.S. Census and the Centers for Disease Control and Prevention and assumes that there are currently about 47 million adult smokers, 33 million (70 percent) of whom report that they want to quit and are the targets of the proposed national cessation program. It is also assumed that approximately 3.7 percent of current smokers will continue to quit on their own each year, that approximately 1 million additional smokers will quit as a result of the national cessation program each year (as projected by the National Action Plan for Tobacco Cessation), that approximately 200,000 current smokers will die each year, and that approximately 734,000 persons will begin using tobacco each year but that 70 percent of them will later want to quit. This model has been adapted from U.S. Justice Department exhibit 18266.
The tobacco industry never questioned the scientific basis of the treatment program nor its projected efficacy. It did, however, question whether the treatment could reach the projected number of smokers, although the projections were based on actual rates of use of such treatment in the population and on expert testimony presented to the Subcommittee on Cessation.
During closing arguments in early June 2005, attorneys for the Justice Department stunned observers by reducing dramatically the amount they were requesting for a cessation remedy — to only $10 billion over a five-year period. In an effort to explain this move, senior Justice Department attorney Frank Marine stated in a letter to the Washington Post that the original $130 billion settlement was not sufficiently focused on future violations of the law and therefore was not in compliance with the requirement that remedies be forward-looking.2
This explanation was puzzling. The issue of whether the remedy was forward-looking was an old one for the Justice Department. In fact, on May 12, 2005, the department had filed a brief arguing that the $130 billion smoking-cessation program was indeed forward-looking and would prevent and restrain future wrongful conduct by the tobacco industry. It was unclear why they were suddenly backing down.
This retrenchment ignited a firestorm of controversy and produced additional evidence suggesting that the department was not pursuing a forceful prosecution of the case. Numerous press reports have indicated that political appointees in the Bush Justice Department may have ordered a reduction of the cessation remedy, over the strenuous objections of the career tobacco-team attorneys.3 According to a June 16, 2005, report in the New York Times, the team's lead attorneys, Sharon Eubanks and Stephen Brody, had warned, in an internal memo to Associate Attorney General Robert McCallum, Jr., that "we do not want politics to be perceived as the underlying motivation, and that is certainly a risk if we make adjustments in our remedies presentation that are not based on evidence." Even presiding Judge Kessler raised questions, stating, "Perhaps it suggests that additional influences have been brought to bear on what the government's case is."4 Moreover, three of the government's expert witnesses (Mr. Matthew Myers, Dr. Michael Eriksen, and Dr. Max Bazerman) were reportedly asked by Justice Department attorneys to soften their testimony (Myers, for example, was asked to change his recommendation for banning marketing to young people).
In response to the resultant protests, including some from members of Congress — such as Representative Henry Waxman (D-Calif.), Representative Marty Meehan (D-Mass.), Senator Tom Harkin (D-Iowa), Senator Frank Lautenberg (D-N.J.), Senator Richard Durbin (D-Ill.), Senator Edward Kennedy (D-Mass.), and Senator Ron Wyden (D-Ore.) — the Justice Department's Office of Professional Responsibility launched an investigation.5 Furthermore, six leading public health organizations (the American Cancer Society, the American Heart Association, the American Lung Association, Americans for Nonsmokers' Rights, the National African American Tobacco Prevention Network, and the Tobacco-Free Kids Action Fund) requested and were granted by Judge Kessler the ability to intervene as parties in the case, arguing that the government's proposed remedies no longer addressed the defendants' wrongful conduct.
These surprising actions raise concern about the current administration's commitment to a faithful pursuit of remedies and to saving or improving the lives of Americans who are addicted to tobacco. If there is a valid reason for the abandonment of the $130 billion smoking-cessation remedy, the Justice Department has failed to articulate it in a convincing manner. As a result, attention has focused on political influence within the department rather than on the compelling portrayal of tobacco-industry crimes presented by the tobacco-team attorneys. There is still some hope that Judge Kessler could impose a larger cessation remedy than the $10 billion requested or that the Supreme Court could reinstate the $280 billion disgorgement remedy. As we await these decisions, however, children continue to take up smoking, millions of people continue to die prematurely, tobacco companies continue to reap huge profits, and relatively little money is being used to help smokers quit.
Source Information
Dr. Fiore is the director, Ms. Keller the senior policy adviser, and Dr. Baker the associate director of the Center for Tobacco Research and Intervention at the University of Wisconsin Medical School, Madison.
References
Fiore MC, Croyle RT, Curry SJ, et al. Preventing 3 million premature deaths and helping 5 million smokers quit: a national action plan for tobacco cessation. Am J Public Health 2004;94:205-210.
Behind the Justice Department's shift on tobacco. Washington Post. June 15, 2005:A24.
Lichtblau E. Lawyers fought U.S. move to curb tobacco penalty. New York Times. June 16, 2005:A1.
Judge queries U.S. decision to slash penalty for tobacco firms. New York Times. June 8, 2005.
Waxman HA, Meehan MT. Letter from members of Congress calling on Justice Department to investigate whether government witness was pressured to weaken testimony. June 20, 2005. (Accessed August 3, 2005, at http://www.tobaccofreekids.org/reports/doj/letters/jarrett062005.pdf.)(Michael C. Fiore, M.D., M)