One Remedy from US v Phillip Morris

Handsel Art

FOR IMMEDIATE RELEASE

2 December 2012

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Tobacco Companies to Issue Corrective Statements

On November 27, 2012 Judge Gladys Kessler clarified remedies of her 2006 ruling  in U.S. v Phillip Morris that found the tobacco industry guilty of racketeering and fraud.  Tobacco companies must publish corrective statements that they lied about the dangers of smoking and manipulation of nicotine addiction,  the hazards of secondhand smoke, and the misconception of allegedly safer “light” and “low tar” cigarettes.   This remedy promises to be the most significant action the government has taken against the tobacco industry in nearly 45 years. 

In 1999 the Department of Justice (DOJ) filed suit under RICO statutes for a decades long conspiracy by the tobacco industry to deceive the American people.  In 2005 a D.C. appellate court denied the original remedies proposed to disgorge $280 billion from tobacco companies as illegal profit. This prompted the DOJ to  reassess remedies and highlight a 25 year $130 billion national tobacco cessation program.  This was a significant setback, though not the last in the DOJ’s case.  

Begun during the Clinton Administration, many involved were surprised when the Bush administration continued the suit.  Yet just days before going to the judge, a Bush political appointee, Robert McCallum, ordered lead counsel and DOJ career lawyer, Sharon Eubanks, to reduce requested remedies for the cessation program to just $10 billion.  McCallum was subsequently rewarded for his work in the DOJ with an ambassadorship to Australia.  (The litany of political interference in this case has been well documented by Ms. Eubanks in her book, Bad Acts.) Judge Kessler’s final order in favor of the DOJ involved 4 major remedies including: disjunctive remedies designed to prevent future RICO violations, eliminating deceptive “light” and “low tar” brand descriptors, disclosure of documents and marketing data, and corrective statements financed by the industry. 

The 2007 Best Practices for Tobacco Control, Health Communications Interventions notes that, “Aggressive state and national counter-marketing campaigns that have more directly confronted the tobacco industry’s marketing tactics have also demonstrated effectiveness but have often become targets for budget cuts.”  Requiring tobacco companies to admit criminal deceit, on their own dime, takes prevention to another and hopefully more effective level.  

The  tobacco industry has a history of manipulating public policy and serious oversight should be given.  But these statements have a timely potential.  An unfortunate aspect of tobacco prevention seeks a solution in making addicts quit and preventing youth initiation while ignoring the industry. The FDA’s recent introduction of 8 Tips for Talking with Youth about Tobacco and the DHHS’  new site BeTobaccoFree.gov  are packed with information about the health effects of tobacco use and nicotine addiction.  But both sites behave as if tobacco use were simply an accident of nature and completely omit the culpability of the tobacco industry in promoting a deadly product.  This promotion, not coincidentally, resulted in a criminal conviction for which these corrective statements hope to begin to remedy.  The terrible pandemic of tobacco related disease will not be resolved on the backs of the victims but on the rogue capitalists who profit from tobacco. This remedy from U.S. v Phillip Morris is a constructive step in that direction.

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Cigars, Candy, Litigation, and Laws

Cigars, Candy, Litigation, and Laws

In 2009 Congress passed the Family Smoking Prevention and Tobacco Control Act with support from major public health groups, and tobacco giant Philip Morris. Lauded by supporters as a landmark, the bill gave the Food and Drug Administration limited authority over tobacco.  But three years after passage, the bulk of the FSPTCA has been delayed or repealed by tobacco industry litigation.  Requirements that tobacco advertisement near where children are present be limited to black on white has been struck down.  Large graphic package warnings, scheduled to go in effect in 2012, are still delayed.  And most recently authority preempting local control over point of sale warnings has been delivered a setback in a New York appellate court.

While many consider the omission of menthol in the list of restricted cigarette flavorings a serious flaw in the FSPTCA, banning fruit and candy flavors have not been thwarted in the courts.  Unfortunately, pro tobacco forces in Congress have introduced a serious challenge in the Traditional Cigar Manufacturing and Small Business Jobs Preservation Act of 2011.  Purportedly focused on high end cigar products, this bill would remove cigars from FDA regulatory authority.  However, that includes the smaller candy and fruit flavored cigars that are a significant feature of the tobacco cartel’s growth market.  These small cigars are more accessible to youth not only because they are sold in flavors but they are also sold individually and often the most inexpensive tobacco product available.  The 2012 Surgeon General’s Report on Youth and Young Adult Tobacco Use notes that 1 in 5 white male high school seniors is a current cigar smoker and that most typically consume more than one type of tobacco product. 

This proposed legislation should alarm local tobacco free advocates because 3 of Arkansas’ Representatives are co-sponsors.  Additionally, retailers in Arkansas are not yet required to place all tobacco products behind the counter. Product placement, like placing small cigars next to bubble gum, has long been a tactic in a sophisticated strategy making tobacco seem normal and desirable in stores where youth frequent.  

For all its flaws, the FSTPCA may show most promise in the potential for point of sale regulation. The new law allows state and local restrictions on the “time, place, and manner” but not “content”  of tobacco marketing. One locality, Haverstraw, NY, has become the first U.S. municipality to restrict tobacco displays, mimicking tactics public health advocates have employed in other countries.   

Protecting the marketing and promotion of inexpensive candy flavored tobacco with bill titles like “Small Business Jobs Preservation” would be silly if the cost to public health were not so tragic.  The Surgeon General’s Report  notes that 80% of high school smokers will go on to smoke into adulthood.  Half will die prematurely.  It is this compelling interest that should drive policy makers to recognize the tobacco cartel’s continued profit at the public’s expense, and end it.  

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FDA Releases Selection of Graphic Warnings

The FDA released Tuesday their final selection of 9 graphic warnings to be placed on all cigarette packaging and advertising by September 2012. These warnings will replace the ubiquitous black and white labels that have been in use for the past 25 years. The Federal Trade Commission found in 1981 that they had little deterrent effect. The new warnings will cover 50% of packaging and 20% of advertising.

CDC research conducted in 14 foreign nations has shown that graphic warnings spur smokers to think about quitting. However, there remains question as to the efficacy in a society as literate as the U.S. Are there really individuals that do not know tobacco will kill you? One of the critiques of youth focused prevention is that young persons do not grasp the same concept of long term health risk. Will these graphic warnings actually penetrate this worldview and prevent initiation?

One of the most unique criticisms of graphic warning labels comes from Martin Lindstrom author of the book Buyology. Lindstrom’s book is an analysis of the effectiveness of marketing tactics involving MRI and EEG brain scanning technologies called nueromarketing. His findings were that graphic warnings on cigarette packaging did little to inhibit craving and promote cessation. In an interview on NBC’s Today show in 2008 he remarked,

“We couldn’t help but conclude that those same cigarette warning labels intended to reduce smoking, curb cancer, and save lives had instead become a killer marketing tool for the tobacco industry.” The crux of his argument is that visual stimuli, like the graphic warnings, over time becomes associated with cigarettes as effectively as any overt branding.

None of the marketing reforms called for in the Family Smoking Prevention and Tobacco Control Act go to the lengths of eliminating branding and advertising called for in the WHO’s Framework Convention on Tobacco Control. Limiting advertising to black on white as well as a preclusion from claiming that a tobacco product was FDA approved were almost immediately held up by litigation. The judicial history of commercial speech in the U.S. may place significant obstacles to ratification in this country.

Perhaps the most positive aspect of these new warnings is the inclusion of the 1-800 QUIT NOW national quit line number. Getting a minimum of social support and counseling to smokers can only act as a prompt for cessation that did not exist previously.

Menthol? What Menthol?

Earlier this year the FDA Tobacco Products Scientific Advisory Committee , entrusted with investigating menthol in cigarettes, stopped just short of a recommendation that menthol be banned. The report noted that, “removal of menthol cigarettes from the marketplace would benefit public health in the United States.” This diplomatic missive, or cowardly depending on your perspective, recognized that menthol may not actually be harmful. But in cigarettes certainly causes harm.

Last week Congress threw another variable into the works when Montana Republican Denny Rehberg’s amendment to an appropriations bill was approved by the House Appropriations Committee. The amendment, in short, would preclude “consumer behavior” as a variable in determining whether a product was safe. Hence the fact that the Advisory Committee had noted that even though menthol played an integral part in the ease of youth initiation to nicotine addiction, and difficulties in cessation, it could not play a role in the decision on whether or not to ban menthol in cigarettes.

A release from Tobacco Free Kids, and others, notes that of the 29 to 20 committee vote, those voting in favor received 20 times the campaign contributions from tobacco companies than those opposing the amendment.

The moral here is a brief lesson in just how bad the passage of the Family Smoking Prevention and Tobacco Control Act was.

It is no secret that the major public health groups, led by the Campaign for Tobacco Free Kids, snuggled up with Phillip Morris to pass the FSPTC. Having the majority market share in the U.S. PM knew they had a good chance that the other tobacco companies would immediately file suit to block any problematic marketing reform. (They did, blocking black and white advertising and restrictions on claiming FDA approval of cigarettes, almost immediately.) While the Act did remove fruit and candy flavored cigarettes,( small cigars and spit tobacco were unaffected). Menthol was the deal breaker for PM because, some menthol is in all tobacco, and they knew they had legislators already paid for in Congress.

The first guiding principle for the World Health Organization's Framework Convention on Tobacco Control is that the interests of the tobacco industry and the public health are incompatible. In the U.S. some of us are learning hard lessons about the veracity of this guideline. Unfortunately, the rest of us will pay for it.

Local Control Given Setback

First the requirements of the Family Smoking Prevention and Tobacco Control Act that cigarette advertising be limited to black and white advertising where minors might view it were struck down. Now the ostensible overturning of Federal preemption for state and local authority to regulate point of purchase advertising was delivered a blow by a federal Judge in New York Wednesday, December 29.

The New york City Board of Health in 2009 voted to require tobacco retailers display graphic warnings of the dangers of tobacco use that included a number for free cessation services. However the decision delivered by U.S. District Judge Jed S. Rakoff considered that an infringement on the tobacco companies rights. “Even merchants of morbidity are entitled to the full protection of the law, for our sake as well as theirs," he said.

Tobacco free advocates were depending on Sec. 203 of the new law to allow local control preempted by the 1965 Federal Cigarette Advertising and Labeling Act. The law reads:

"Section 5 of the Federal Cigarette Labeling and Advertising Act (15 U.S.C. 1334) is amended by adding at the end the following: ‘‘(c) EXCEPTION.—Notwithstanding subsection (b), a State or locality may enact statutes and promulgate regulations, based on smoking and health, that take effect after the effective date of the Family Smoking Prevention and Tobacco Control Act, imposing specific bans or restrictions on the time, place, and manner, but not content, of the advertising or promotion of any cigarettes.’’"

Apparently the graphic content denied those that profit from the leading cause of death and disease from the full protection of the law. Thus continues the odd saga in the United States of what is known only here as commercial speech. When applied to tobacco not only does it protect corporations’ speech it protects them from liability after 1969.

Supported by the major public health groups, and tobacco giant Phillip Morris, the new federal law giving limited authority over tobacco to the FDA is turning out to be yet another significant victory for tobacco companies.

Fed's Latest Effort

Handsel Art

17 November 2010

FOR IMMEDIATE RELEASE

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HHS Announces Tobacco Strategy

Earlier this month the Director of the U.S. Department of Health and Human Services, Kathleen Sebelius, announced the federal government’s latest strategy to control the leading cause of preventable death, tobacco. Headlining the announcement were the new graphic pack and ad warnings required by the Family Smoking Prevention and Tobacco Control Act giving limited authority over tobacco to the Food and Drug Administration. These 9 graphic warnings will cover 50% of any pack and 20% of advertising. In 1965 the tobacco lobby was successful in minimizing Surgeon General Luther Terry’s report that smoking caused cancer to the ubiquitous: “Smoking may be hazardous to your health.” Arguably, tobacco lobbyists still manipulate public policy.

Today 38 nations require similar or stronger warnings. Australia has required that all cigarettes be sold in plain packaging by 2012. Other nations‘ graphic pack warnings are a facet of the World Health Organizations Framework Convention on Tobacco Control. Ironically, the U.S. law requiring graphic warnings also inhibits this country’s compliance with the global treaty by including the tobacco industry on an FDA scientific advisory panel.

Requirements in the new legislation to quit using deceptive “light” and “low tar” packaging had been anticipated by the industry changing the actual language to suggestive lighter colored packaging. Actually, the elimination of the words “light” and “low tar” had been ordered by Judge Gladys Kessler in 2006 as part of her finding against the tobacco industry as racketeers. Restricting advertisements to black on white messaging were almost immediately struck down by the courts.

While the bill was supported by major public health groups, and global tobacco giant Philip Morris, not all advocates consider giving the FDA limited authority over tobacco a good idea. Dr. Heinz Ginzel, Emeritus Professor of Pharmacology and Toxicology at the University of Arkansas for Medical Sciences says, “ Any regulatory actions concerning tobacco taken under the auspices of the FDA are jeopardizing, contaminating, degrading and corrupting the declared original mission of the FDA.”

Other advocates like the National African American Tobacco Prevention Network object to a failure to include menthol flavoring while banning fruit and candy flavors. A recent press release from NAATPN states, “Our organizational stance is and has always been steeped in the historic exploitation and targeting of Black communities by the tobacco industry which began in the 1950’s when only 5% of our community smoked mentholated tobacco, and continues today because now nearly 83% of all tobacco consumed by Blacks is mentholated.” The FDA scientific advisory panel has until 2011 to determine how to regulate, if at all, menthol flavoring in tobacco.

One positive aspect of the new law is the removal of federal preemption for state and local governments to regulate point of purchase marketing. Currently the only signage or advertising mandates are legal age requirements. These are most often produced by the tobacco industry. Arkansans could now require the Quit Line be placed at point of purchase, regulate signage, or enhance any federal health warnings.

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That Minty Fresh Taste in the Bile of Political Manipulation

In 2009 the Family Smoking Prevention and Tobacco Control Act was passed with huge support from status quo public health groups and opposition from tobacco companies, with the exception of Philip Morris, and a minority of tobacco prevention advocates. These minority advocates, before any particulars, knew that historically any collaboration with the tobacco cartel had been in the end only beneficial to the industry. That conclusion is being affirmed daily.

Prohibition of tobacco marketing assertions that claimed FDA approval of tobacco products was quickly struck down by the courts, as were the black and white advertising limitations. Passage of the bill was momentarily held up because while eliminating fruit and candy flavors it did not prohibit menthol flavoring for tobacco. The argument was that after passage there would be the opportunity to eliminate menthol as one of many substances in tobacco that had been proven to be a harm. Well guess what? The guidelines that dictate how and what the Tobacco Products Scientific Advisory Board can recommend may well preclude the elimination of menthol because menthol, by itself is not harmful. This at least is one of the argument that the industry will take in opposing any change in regards to menthol.

There is little doubt that menthol in tobacco is a key in the initiation of nicotine addiction. It acts as an anesthetic cooling tobacco smoke and making tobacco more palatable. Eliminating menthol in tobacco could prevent many youth from ever starting to use tobacco and make quitting more possible for other untold millions. The enormity of the potential lives saved by restricting this additive is almost incomprehensible.

One of the basic premises this bill’s advocates took was that if we knew what was in tobacco products their harm could be evaluated and the industry forced to remove them. But now it seems this harm could well be evaluated independently of tobacco. Dr. Joel Nitzkin describes the situation in a Globalink post: “In other words -- the problem is not the "science" related to menthol -- but a bureaucratic standard operating procedure adopted by FDA on the basis of an overly constrictive interpretation of the legal authority granted to them under the new FDA tobacco law.”

75% of African American smokers smoke a “menthol” brand but virtually all tobacco has to some degree menthol as an additive. The African American Caucus held up passage of the Family Smoking and Tobacco Prevention Control Act’s limited authority to regulate tobacco over the issue of restricting menthol flavoring just as the bill had eliminated fruit and candy flavors. However, objections from Philip Morris prompted supporters to compromise with the assurance that menthol could be eliminated after the bill’s passage. This may not be the case at all.

The panel has until 2012 to make its recommendations concerning menthol. This issue, if nothing else, displays quite well the irony and inanity of asking the FDA to regulate an inherently unsafe product without the authority to regulate it out of existence.