Tobacco Companies Make Opening Arguments in $289 Billion Justice Department Lawsuit
The tobacco industry has reformed sales and marketing practices and never conspired to mislead the public about the health risks of smoking, attorneys for several large tobacco companies said in opening arguments on Wednesday in a lawsuit filed over allegations that the companies violated a federal Racketeer Influenced and Corrupt Organization Act, the Washington Post reports (Leonnig, Washington Post, 9/23). The lawsuit, filed by the Department of Justice, alleges that Brown & Williamson, Philip Morris, R.J. Reynolds, Lorillard Tobacco and the Liggett Group misled consumers about the health risks of smoking and directed multibillion-dollar promotional campaigns at children.
DOJ made the allegations as part of a larger federal lawsuit first filed by the Clinton administration in 1999 that accuses the tobacco industry of conspiracy to mislead consumers about the dangers of smoking. The lawsuit seeks $280 billion in past profits, which represents revenues from sales to smokers younger than age 21 between 1971 and 2000, as well as interest. In addition, the lawsuit seeks $9 billion to pay for smoking-cessation programs and research into safer cigarettes. The trial, presided by U.S. District Judge Gladys Kessler, likely will last at least six months, with 100 witnesses expected to testify in person and 200 others to testify through depositions or testimony in other trials.
On Tuesday, DOJ attorneys presented internal documents dated between the 1950s and the 1980s to demonstrate that the tobacco companies privately acknowledged that smoking causes cancer and other diseases and developed a coordinated public relations campaign to mislead the public to protect billions of dollars in profits. DOJ attorney Sharon Eubanks alleged that tobacco company officials and scientists targeted teens to replace smokers who quit or died and developed products to take advantage of the addictiveness of nicotine. In addition, Eubanks said that the tobacco companies engaged in a conspiracy to defraud that included denials of the addictiveness of nicotine, manipulation of nicotine levels in cigarettes to addict consumers, fraudulent promotion of "light" cigarettes as healthier than regular cigarettes and promotion of cigarettes to children.
According to DOJ attorneys, they must prove a past history of conspiracy that the tobacco companies could repeat to win the case (California Healthline, 9/22).
Phillip Morris attorney Ted Wells on Wednesday said that the mistakes tobacco companies made in the past did not constitute fraud and that the current business practices of companies make "any future fraud unlikely," the New York Times reports (Janofsky, New York Times, 9/23). "Some of the conduct by individuals in the past ... was wrong-headed, mistaken and even regrettable, but it wasn't a ... conspiracy," Wells said. He added that opening arguments made by DOJ attorneys failed to account for "profound and permanent" changes to sales and marketing practices used by tobacco companies after the $246 billion settlement with 46 states in 1998 (Washington Post, 9/23). Wells said, "The government says to the court, 'Focus on the past.' The defense says to the court, 'Focus on the present.' Which one is a better predictor of the future?" (Wall Street Journal, 9/22).
He added that "during the last several years, there has been such profound and fundamental change in how tobacco companies communicate with the American public about the risk of smoking that there is no likelihood of future RICO violations" (New York Times, 9/23). Tobacco company officials today acknowledge that "we're in the business of selling a dangerous product," Wells said, adding, "Each of the defendants say to the American public in a clear and unambiguous manner that smoking is dangerous" (Washington Post, 9/23). Wells said that the acknowledgement by the tobacco companies "is good for the society" but "fatal to the government's case" (Levin, Los Angeles Times, 9/23).
In addition, Lorillard attorney William Newbold denied allegations that tobacco companies "spike" cigarettes with added nicotine to make them more addictive or secretly agreed to not develop safer cigarettes or to cite health risks in advertisements. David Bernick, an attorney for the tobacco companies, added that "hundreds of scientific studies paid for by the tobacco companies are cited in surgeon general reports over the decades that proclaimed the dangers of smoking," Cox/Richmond Times-Dispatch reports (Cox/Richmond Times-Dispatch, 9/23).
R.J. Reynolds attorney Robert McDermott also argued that studies have not found "conclusive proof that secondhand smoke causes disease" and that tobacco companies "cannot be accused of fraud when some independent scientists continue to question that conclusion," the Post reports. In the early 1990s, the Environmental Protection Agency concluded that secondhand smoke is a carcinogen (Washington Post, 9/23).
Deputy Associate Attorney General Matt Zabel said that "recent superficial changes in behavior" by the tobacco companies are "too little, too late" (Cox/Richmond Times-Dispatch, 9/23). The trial will continue on Thursday with the cross-examination of the first DOJ witness, former FDA Commissioner David Kessler (Wall Street Journal, 9/22). Kessler will address allegations that tobacco companies manipulated nicotine levels to make cigarettes more addictive (Zuckerbrod, AP/Chico Enterprise-Record, 9/22).
CBS' "Evening News" on Wednesday reported on the DOJ lawsuit. The segment includes comments from Associate Attorney General Robert McCallum and William Ohlemeyer, associate general counsel for Altria Group, parent company of Philip Morris (Stewart, "Evening News," CBS, 9/22). The complete segment is available online in RealPlayer.This is part of the California Healthline Daily Edition, a summary of health policy coverage from major news organizations. Sign up for an email subscription.