For more than half a century, the tobacco industry engaged in rampant and willful deception about the dangers presented by its product. They denied the negative health effects of second-hand smoke. They falsely marketed certain cigarettes as healthier alternatives to their other products — when in fact they were nothing of the sort — and they even built entire marketing strategies around addicting children to nicotine. As one tobacco representative put it, “cherry Skoal is for somebody who likes the taste of candy, if you know what I’m saying.”
All of this was supposed to change in 2006, however, when Judge Gladys Kessler ordered big tobacco to cease some of its most deceptive practices and to publicly admit many of the dangers presented by tobacco use. Moreover, because of the industry’s long history of contempt for the law, including past failure to comply with a massive multi-state settlement agreement, Judge Kessler held that she would continue to oversee the tobacco industry to make sure that they did not defy her order.
Flash forward three years, and President Obama signs a law allowing the FDA to regulate tobacco. Almost immediately, the tobacco industry told Kessler that she must stop monitoring their compliance with the law because the FDA regulations alone would suffice to keep them in line. Last week, Kessler informed them that she is not fooled:
Defendants’ contention that no reasonable likelihood of future RICO violations exists due to the FDA’s regulation is particularly unconvincing when Defendants are simultaneously and vigorously challenging, both in a separate law suit and in administrative proceedings, many of the provisions of the Tobacco Control Act–including provisions which they claim render them unlikely to commit future violations of RICO. In Commonwealth Brands, Inc. v. United States, tobacco companies, including some of the Defendants in this case, argued “that various provisions of [the Act] . . . violate their free speech rights under the First Amendment; their rights to Due Process under the Fifth Amendment; and effect an unconstitutional Taking under the Fifth Amendment.” Although the district court in that case upheld the majority of the statute, both sides have appealed the ruling to the Court of Appeals for the Sixth Circuit. It is difficult to understand how Defendants can argue that the Tobacco Control Act will produce their future compliance with RICO when they do not believe that a great portion of the Act should apply to them at all. And, if in fact Defendants should prevail in their challenges to the Tobacco Control Act, it will be all the more necessary for them to be restrained by this Court from any future violations of RICO.
In essence, the tobacco companies are telling Judge Kessler that her oversight is no longer needed because the FDA will provide the industry with adult supervision, while simultaneously telling another court to strike down the FDA’s oversight because it violates the Constitution. And while Judge Kessler wanted no part of big tobacco’s chutzpah defense, the industry has appealed her decision to one of the most conservative courts in the country.
Poor Phillip Morris. Having slain its mother and father, it now has no choice but to demand leniency because it is an orphan.