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ClearWay Minnesota(SM) Celebrates 10-Year Anniversary of Settlement 

Tomorrow marks the 10-year anniversary of Minnesota's historic settlement with the tobacco industry. The settlement and the trial leading up to it made national headlines for exposing millions of tobacco industry documents and for creating ClearWay Minnesota, an independent nonprofit organization dedicated exclusively to eliminating the harm tobacco causes Minnesotans.

Funded with 3 percent of the settlement, ClearWay Minnesota has achieved significant milestones during the past decade, including comprehensive cessation services for all Minnesotans, a strong statewide smoke-free law and a nationally respected research program. ClearWay Minnesota remains the only organization of its kind in the country.

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• State can't use tobacco money yet, judge says 

Ohio's anti-tobacco foundation went away this week, but the struggle over its money did not end with a court hearing yesterday.

Franklin County Common Pleas Judge David W. Fais kept alive a lawsuit by the American Legacy Foundation, an anti-smoking group based in Washington, that claims $190 million of the Ohio Tobacco Prevention Foundation's $270 million endowment. . . .

leaders of the Ohio foundation attempted to move the money to the American Legacy Foundation.

Lawyers for the national foundation persuaded Fais yesterday not to dismiss their case. The matter is scheduled to return to his court June 2-3.

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• Jill Burcum: Breathe deeply and ponder this anniversary 

It had all the elements of a John Grisham novel: a crack legal team filing a long-shot lawsuit, a behemoth defendant peddling cancer-causing products, secret stashes of incriminating documents, and a mind-boggling, multibillion-dollar settlement. Yet Minnesota's landmark tobacco case was a real-life legal thriller. Ten years ago today, after a dramatic trial in St. Paul, the state settled with the nation's tobacco companies for more than $6 billion.

As Minnesota's sesquicentennial approaches, we're marking 150 years of statehood with wagon trains and faded photos of early settlers. But the 10-year milestone of the tobacco settlement reminds us that the state's more-recent history also offers much to celebrate, including the risk-taking legal pioneers who beat Big Tobacco. The Minnesota case not only paved the way for other states to settle, but blew once and for all the industry's smokescreen on how much it knew about the dangers of its own products.

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ARCH, et. al. v. AMERICAN TOBACCO CO., et. al.: Deposition of John H. Hager 

Q. Is it still your testimony, sir, that you have no recollection of any specific instances of dealing with Compound W?

A. That's correct. Back in 1969 obviously it became a slang term, if you will, for some work we had done in the research department. This memorandum is dated almost three years later obviously in response to a direct question by Mr. Heimann. At least it appears to be that way.

Q. What was your job on April 25th, 1972?

A. I was the director of research and development.

Q. You called Compound W a slang term at this point in time? What do you mean by that?

A. A descriptive term.

Q. Was it a reference to nicotine?

A. I would assume so. Yes, sir. The memo certainly suggests that, but it is a theoretical --It's an answer to a theoretical question. How do you get higher nicotine? Well, you can add it. You can buy tobacco differently. You can do it lots of other ways. Through shuffling reconstituted, shuffling stems in the blend. It seemed to me like it was a very direct answer to a very direct question, a theoretical type of question.

Q. Why was the president of American Tobacco interested in this question in 1972?

A. He was trying to perform his function - He had dual function. He was involved very heavily with marketing, and he wanted to know why certain brands were performing better or worse than other competitive brands, and was it related to marketing and advertising or related to product? Product content.

Q. Was it his view that nicotine content affected the popularity of brands?

A. I doubt it. I don't know. I can't -- You have to ask him that. . . .

Q. But you cannot, as you sit here today, testify that Compound W was not used in any American Tobacco commercial products, can you?

A. I said to my knowledge it was never used.

Q. But you admit that you don't have full knowledge. Do you?

A. I wouldn't think I would have full knowledge about anything in this world.

Q. And you're disclaiming knowledge specifically about Compound W, aren't you?

A. No. I didn't -- I told you on the record what Iknew about Compound W. Others knew other things. Fine.

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• 10 years ago today: Landmark tobacco trial ends with a settlement 

Ten years ago today, the state of Minnesota and Blue Cross Blue Shield reached a landmark settlement with the major tobacco companies. That settlement included $6.1 million to the state of Minnesota and $469 million to Blue Cross Blue Shield.

St. Paul, Minn. -- In addition to dollars, the tobacco companies had to end cigarette billboard advertising, stop commenting about the health effects of smoking, and set up a depository for tobacco documents.

The state and Blue Cross had argued the tobacco companies defrauded the public about the true health effects of smoking, and sued to recoup smoking-related health care costs.

It was a momentous case because it unearthed years of internal company documents that showed the companies knew smoking was hazardous and addictive, while publicly, they said the opposite.

The major tobacco companies said they settled because they couldn't get a fair trial in Minnesota. The state's consumer protection laws were tougher than in many other states, and the companies also said the judge was biased against them.

Ramsey County Judge Kenneth Fitzpatrick denied the companies' request to make the "death credit argument," that smokers cost the state less because they tended to die sooner.

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Blue Cross marks 10 years since tobacco settlement 

Ten years ago this week, Blue Cross and Blue Shield of Minnesota became the first private insurance company to score a legal victory against the tobacco industry.

Blue Cross will mark that anniversary by hosting a daylong Prevention Minnesota conference Thursday at the Minneapolis Marriott Southwest in Minnetonka.

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• Blue Cross Marks 10-Year Anniversary of Victory Over Tobacco Industry 

Ten years ago this week, Blue Cross and Blue Shield of Minnesota (Blue Cross) became the first private insurance company to score a legal victory against the tobacco industry. On May 8, 1998, Blue Cross and the State of Minnesota agreed to settlement terms with the tobacco industry, ending a four-month trial that had national and even international implications. The benefits of this settlement are clear today, as Minnesota enjoys a lower smoking rate than the national average.

The historic lawsuit and trial received worldwide attention for exposing the tobacco industry's long history of deceptive marketing, advertising and research, ultimately forcing the industry to change its business practices. In addition to Blue Cross' monetary award of $469 million and the State's award of $6.1 billion, the settlement required tobacco companies to stop a number of practices in Minnesota. The restrictions, which were quickly adopted by 46 other states . . . Others have said our decision to sue the industry was the greatest act of corporate courage they had ever seen. Courageous or not, it was the right thing to do," said Dr. Mark Banks, CEO, Blue Cross. "The lawsuit paved the way for significant public health achievements and will continue to have a profound impact on the health of our members and all Minnesotans for years to come."

Ten years later, the victory over the tobacco industry is still giving back to Minnesotans. Blue Cross continues to commit its settlement money to create lasting change that improves health for all Minnesotans. In 2006, Blue Cross launched Prevention Minnesota, a long-term initiative to reduce heart disease and cancers by tackling their root causes -- tobacco use, secondhand smoke, physical inactivity and unhealthy eating. . . .

Blue Cross will mark the tobacco settlement anniversary by hosting a day-long Prevention Minnesota conference at the Minneapolis Marriott Southwest in Minnetonka on May 8. For more information on Blue Cross' Prevention Minnesota initiative, visit http://www.bluecrossmn.com/preventionminnesota.

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• Tobacco bosses come out smoking  

Parliament is considering the second part of the Tobacco Bill, which was split into two on technical grounds in 2006.

The first, the “section 75” bill, dealt primarily with smoking in public places, and was signed into law by President Thabo Mbeki in February.

The second, the “section 76” bill, goes to the heart of tobacco firms’ business, as it proposes tightening the existing restrictions on the advertising and promotion of their products.

Yesterday the Tobacco Institute, JTI and BAT complained in separate presentations to Parliament’s health committee that they had not been properly consulted by the health department on the section 76 bill. BAT spokeswoman Fay Kajee said the company was prepared to go to the Constitutional Court to ensure proper public consultation, if need be.

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Governor OKs tobacco fund liquidation; state moves to dismiss suit  

The Ohio legislature is hoping a second time's the charm with an effort to secure more than $200 million from the state Tobacco Prevention Foundation for a jobs initiative.

Gov. Ted Strickland on Tuesday signed House Bill 544, introduced a week ago by Rep. Jay Hottinger, R-Newark. The bill liquidates all $270 million of the foundation's funding and dissolves its board, allocating $230 million for a $1.57 billion state economic stimulus plan.

The remaining $40 million will be directed to the Ohio Department of Health to pay off the foundation's outstanding obligations and fund tobacco-cessation initiatives with what's left over.

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• Scott County bar's 'theatrical' smoking case goes to court  

The decision now rests in the hands of a Scott County judge following the first legal arguments over a theatrical exception to the Minnesota Clean Indoor Air Act. Invoking the exception, bars across the state have drawn national attention over creative "performances" that walk the line between stage production, civil disobedience and flouting the law.

District Judge Jerome Abrams seemed willing to entertain the idea that the performances -- where patrons from the suburbs to the Iron Range have bought buttons, dubbed themselves actors and lit up in bars -- fall within a hastily added exception to the statewide ban originally intended to apply to venues such as the Guthrie Theater.

"I'm very accepting of ... Shakespeare in the Park," Abrams said at one point. "I don't think you need a proscenium arch or a thrust stage to call it 'theater.' "

A lawyer for the Minnesota Department of Health, which brought the case, said allowing the shows to go on would create an exception that swallows up the rule. Last month, the state sued the rural Elko bar Bullseye Saloon

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• Gov. signs bill snuffing anti-smoking foundation 

The foundation that operated Ohio's anti-smoking programs is gone.

Gov. Ted Strickland on Tuesday, May 6, signed legislation, effective immediately, abolishing the Ohio Tobacco Prevention Foundation and authorizing state Treasurer Richard Cordray to liquidate its $270 million in remaining funds -- with $230 million going to a new state jobs fund.

The remaining $40 million goes for the foundation's obligations, which will be taken over by the state Health Department. The foundation was created with money from Ohio's share of the national tobacco settlement.

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• Governor signs bill to get rid of tobacco foundation 

Gov. Ted Strickland has signed a bill to strip the state's tobacco prevention foundation of its funds.

The bill was a response to a lawsuit by the foundation to stop the state from using the majority of its funds as part of an economic package to create jobs. It was passed Tuesday by the Senate before receiving the governor's signature.

The bill enables the state to transfer $40 million from the foundation to the Ohio Department of Health, which will take over the foundation's anti-tobacco efforts.

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There is No Constitutional Right to Smoke: 2008 (PDF) 

Conclusion

The so-called “right to smoke” is actually a smokescreen. There is no constitutional right to smoke. Therefore, advocates are free to seek enactment of new smoke-free laws or the amendment or repeal of existing laws that harm the public health despite claims by their opponents invoking a right to smoke. So long as proposed smoke-free legislation is rationally related to a legitimate government goal, the Constitution will not stand in the way of its passage. Courts are quick to find that smoke-free legislation is rationally related to a legitimate government goal, since they have long held that protecting the public’s health is one of the most essential functions of government.52

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Legal Update (PDF) 

Opponents of tobacco control policies often argue that smokers have a special, constitutionally protected right to smoke. To debunk this notion, the Legal Consortium has updated and revised its popular 2005 publication, “There is No Constitutional Right to Smoke.” . . .

States Powerless to Control Online Cigarette Sales to Minors, Supreme Court Says

On February 20, 2008, the U.S. Supreme Court unanimously overturned the State of Maine’s attempt to control the online sale of cigarettes to minors by regulating the delivery of tobacco products. . . .

As reported in our August 2007 Legal Update, the Legal Consortium filed an amicus brief, arguing on behalf of many health and advocacy organizations that Maine’s law was a legitimate exercise of a state’s police powers. In a concurring opinion, Justice Ruth Bader Ginsburg urged Congress to remedy the regulatory gap created by the Court’s decision, and quoted the Legal Consortium’s brief, written by Kathleen Dachille, director of the Legal Consortium’s Maryland affiliate: “As cyberspace acts as a risk-free zone where minors can anonymously purchase tobacco, unrestricted online tobacco sales create a major barrier to comprehensive youth tobacco control.” Unfortunately, the Court’s decision has created just such a barrier, and leaves the protection of America’s minors to a Congress with a record of indifference to most tobacco-related problems.

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• NYC: Judge clears suit on untaxed cigarette sales  

New York City's lawsuit against wholesalers of untaxed cigarettes, who the city says deprive it of tax dollars and thwart it from curbing smoking, was cleared by a U.S. judge, city lawyers said on Thursday.

Judge Carol Bagley Amon, of the U.S. District Court for the Eastern District of New York, on Wednesday decided that wholesalers that "flood the market" with untaxed cigarettes can be held liable under the federal Contraband Cigarette Trafficking Act and state law, the lawyers said in a statement.

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