Big Tobacco, Lawless as Ever

Tuesday, September 5, 2006

"Even after the Complaint in this action was filed in September 1999, Defendants continued to engage in conduct that is materially indistinguishable from their previous actions, activity that continues to this day. . . . [A]ll Defendants continue to market 'low tar' cigarettes to consumers seeking to reduce their health risks or quit; all Defendants continue to fraudulently deny that they manipulate the nicotine delivery of their cigarettes in order to create and sustain addiction."

SO WROTE U.S. District Judge Gladys Kessler in her lengthy and impressive opinion last month in the federal government's racketeering lawsuit against the tobacco industry. Last week, two events demonstrated the wisdom of this harsh judgment.

First, the Massachusetts Department of Public Health released data showing that nicotine yields from cigarettes rose about 10 percent between 1998 and 2004 -- dramatically supporting Judge Kessler's contention that manipulations of the highly addictive chemical remain business as usual. The data show an increase across companies and largely across brands. The companies have not commented on the data, and the reason for the increase is not entirely clear. Most smokers get the dose of nicotine their addictions require by regulating the depth of their inhalation, by covering vents in the cigarettes or simply by adjusting the number of cigarettes they smoke. So why the companies would need to boost the nicotine level is somewhat mysterious. Perhaps, with modern restrictions making it harder to recruit new smokers, increasing the dose helps retain those already hooked. Perhaps, with indoor smoking restrictions becoming so prevalent and smokers able to light up less often, it is a way of letting smokers get their daily fix from fewer cigarettes. But there's no reason to believe the pattern is accidental. It is serving some purpose, and it goes on with no regulatory agency overseeing or even monitoring it.

The second event was a motion filed by the companies Friday, asking Judge Kessler to clarify that the ban she had slapped on such deceptive cigarette marketing terms as "light" and "low tar" did not apply overseas. The companies filed this brief knowing that the judge had ruled that the use of such terms was part of a massive pattern of fraud and deceit. Yet in a sign of the boundless rapaciousness of these companies in marketing death, they had the temerity to ask her not to apply her order "to sales wholly outside the United States." If we can't continue to defraud Americans into killing themselves, they effectively asked, can we at least keep suggesting to billions of people abroad that some cigarettes are safer than others?

When a distinguished federal judge describes ongoing fraud, prosecutors should prick up their ears. More broadly, the lawlessness of this industry will persist as long as federal policymakers refuse to pass meaningful regulation that defines clear rules under which this deadly product can be made and marketed. As Judge Kessler herself notes, litigation will not ultimately bring this industry to heel. Only legislation can do that.


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