Big tobacco: 50 years of lies. Now what?

For 50 years, big tobacco has "lied" to the American public about the devastating health effects of smoking, a US judge ruled last week. That's a moral victory for the federal government, which initiated this massive court case seven years ago. Sadly, the ruling will do little to remedy the problem of tobacco use.

The federal case comes after a major settlement between the tobacco firms and 46 states in 1998. In the end, the industry agreed to compensate all 50 states $246 billion over 25 years for health costs related to smoking. They also agreed to marketing changes – such as taking down billboard ads – and to help pay for antismoking campaigns.

But the federal government didn't believe the settlement with the states went far enough, or it wouldn't have brought its own suit seeking a $280 billion penalty for conspiring to hide smoking's harmful effects. About half that amount was to fund smoking cessation and prevention programs and public education about the dangers of tobacco.

The federal case tried to do what the states settlement didn't – change practices in the industry and adequately fund campaigns to prevent and reduce smoking. There's an enormous desire among America's 47 million smokers to quit, and every effort should be made to help them, and to prevent potential smokers (mostly young people) from starting.

While big tobacco may maintain it has already reformed and already paid by virtue of its states settlement, US District Judge Gladys Kessler found last week that fraud is ongoing. "As the evidence overwhelmingly demonstrates, [tobacco's] fraudulent conduct has permeated all aspects of their operations – from how they design, manufacture, and market their products to how they communicate with the public about them – and continues to this day."

Judge Kessler did her best to remedy this. She ordered the defendants, including Philip Morris and R.J. Reynolds, to stop using terms such as "light" and "low tar," which mislead smokers to believe such cigarettes are significantly less harmful; to issue corrective statements in newspapers and on TV; to share marketing data with the government; and to pay the government's legal fees. But she didn't do anything to help fund antismoking efforts or grant the government its sought-after penalty.

This is because she was restricted by a federal appeals court ruling last year. The court found that, because the US was bringing the tobacco case under the Racketeer Influenced and Corrupt Organizations Act, remedies must be "forward-looking," and ill-gotten industry gains from the past could not be used. The US then dropped its penalty demand to $14 billion.

So Ms. Kessler has found that big tobacco is a fraudulent bunch of racketeers, but she can't do much about it. Who can?

That would have to be Congress. Legislation has languished that would give the Food and Drug Administration regulatory oversight of tobacco – a legal industry, yes, but also one that sells an addictive substance and that kills hundreds of thousands of people each year. Kessler's hands were tied, but that's not the case with Congress. If it can resist $22 million in tobacco lobbying, it can act.

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