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An Essay published this week in the open access journal PLoS Medicine calls for the President Obama to "make a strong public commitment" to tobacco control by mobilizing US Government departments and agencies to achieve a coherent policy after eight years of neglect.
In their paper, Thomas Novotny and Joshua Yang, researchers in tobacco control and public health from San Diego State University and University of California San Francisco respectively, emphasize the huge potential for the US Government to reduce tobacco mortality and morbidity if action is co-ordinated across agencies. Presently tobacco use is the leading preventable cause of death in the United States - responsible for at least 443,000 deaths between 2002 and 2004 - and exacerbates health disparities in the country, with African Americans, Native Americans, people in poverty and those with lower educational attainment suffering from a higher burden of the diseases and disabilities that result from smoking.
Critically the authors argue that simple tobacco control measures - such as creating smoke-free environments, and engaging a mass media public education campaign - can come at little cost to the government. Programs that do require investment, such as providing comprehensive smoking cessation services and expanding regulation over tobacco products, marketing and promotion, could eventually yield economic return. Smoking is currently a huge fiscal burden, resulting in the loss of $96.8 billion in productivity losses and over $75 billion in annual US medical expenditures.
The paper outlines the agencies that can play an important part in a revitalized approach and stress three key tobacco control issues that should be prioritized to frame a national policy coherence plan. Firstly, the ratification of the first ever global health treaty, the World Health Organisation (WHO) Framework Convention on Tobacco Control (FCTC) - which was not sent to the Senate by President George W. Bush - could act as a framework for national policy. The bill to grant the US Food and Drug Administration (FDA) regulatory authority over tobacco products, recently passed by the US House of Representatives, should contain the strongest possible language without concessions to the tobacco industry. And thirdly, the authors point towards settling the case that the Department of Justice brought against the tobacco industry, currently in appeal, which orders the industry to cease false and deceptive activities.
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When Harvard Law School hosted a huge dinner a few years ago for the conservative Federalist Society, the school's dean, Elena Kagan, received such long and enthusiastic applause that she felt compelled to hold up her arms in mock protest.
"You are not my people," she said to laughter -- and more applause.
Kagan will try to retain the reputation as the liberal whom conservatives could like when the Senate Judiciary Committee today considers her nomination to become the nation's solicitor general, the "10th justice" who represents the government before the Supreme Court and the nation's appeals courts. . . .
She clerked at the Supreme Court for Justice Thurgood Marshall, whom she described after his death as "the most important -- and probably the greatest -- lawyer of the 20th century." Except for a two-year stint in the Washington offices of Williams & Connolly, she has spent her career in government and academia, and has a prominent gap in her deep résumé: She has never argued a case at the Supreme Court or in any appeals court.
Instead, she taught law at the University of Chicago, where she was part of a group that tried to interest a part-time constitutional law lecturer named Barack Obama in committing to a full-time life in academia. She joined the Clinton administration, first as an associate counsel and then as a domestic policy adviser. "Wonderwonk" was the title of the article the New Republic wrote about her role when the administration worked with Sen. John McCain (R-Ariz.) to try to give the government more regulatory power over tobacco.
The Senate Judiciary Committee has scheduled a hearing Feb. 5 on the nomination of David W. Odgen to serve as the Justice Department's second in command.
Ogden, a partner at the WilmerHale law firm in Washington, had previously led the department's civil division and managed the office of then-Attorney General Janet Reno as her chief of staff. During his time at the Justice Department during the Clinton era, Ogden famously advanced the government's landmark lawsuit against big tobacco companies. . . .
About 45,000 sick smokers have been approved for payments from a $580 million fund that sprouted from an overturned tobacco negligence verdict, but questions about federal tax liability and Medicare liens still have not been answered.
About $405 million has been distributed in individual checks of $9,000, but supplemental checks have been held up while lawyers figure out what to do with the claims asserted by the federal government, said court-appointed fund administrator Miles McGrane of McGrane Nosich & Ganz in Coral Gables, Fla.
"We're sort of on hold. We're trying to get some definitive word from them," said McGrane, who believes the checks shouldn't be taxable.
The Daily Business Review obtained confidential memos in October about talks between the Justice Department and attorneys for claimants on the tax and Medicare issues.
Confusion over the status of the fund was mentioned last week in a status report by McGrane to Miami-Dade Circuit Judge David Miller.
"In all fairness to the DOJ, I don't think they've ever come across an animal like the Engle Trust Fund," McGrane said
The New Republic called Elena Kagan a “wonderwonk” for her work on tobacco legislation in the Clinton administration. She was, the magazine said, “a nerd who can talk tough.”
Justice Thurgood Marshall, for whom she served as a law clerk, called her, Ms. Kagan once wrote, “to my face and I imagine also behind my back, ‘Shorty.’ ”
And if she is confirmed by the Senate, Chief Justice John G. Roberts Jr. will welcome Elena Kagan to the Supreme Court lectern as “General Kagan,” the first female solicitor general.
The solicitor general, who is the only federal official required by statute to be “learned in the law” and is sometimes referred to informally as “the 10th justice,” supervises appellate litigation involving the federal government and presents the government’s views to the Supreme Court.
Ms. Kagan, 48, is dean of Harvard Law School. She has a powerful and varied résumé and has produced a substantial paper trail. But she has provided few clues about where she stands on the great legal issues of the day, notably the Bush administration’s broad assertions of unilateral executive power in areas like detention, surveillance, interrogation and rendition.
Thomas J. Perrelli
Current job: Managing partner, Washington office of the law firm Jenner & Block
What he offers: The former Harvard Law School classmate and Law Review colleague of President-elect Barack Obama is widely remembered among career staff members at the Justice Department for his easygoing temperament and his legal skills. He advised then-Attorney General Janet Reno and went on to manage an important Justice Department unit that defends federal agencies from lawsuits.
Vetting: During his government service, Perrelli handled cases against tobacco companies. In private practice, he represented Democratic officials in redistricting battles. Both issues could draw questions at the confirmation hearings.
The Justice Department is involved in talks with several attorneys for sick smokers in an effort to collect federal income tax and Medicare money from a $580 million trust fund being distributed to members of a disbanded Miami class action, according to confidential memos obtained by the Daily Business Review.
The federal government's interest in the fund has some attorneys scrambling to determine the best way to proceed with distributing the money to sick smokers. Several contend that the fund is not a typical lawsuit judgment and is not subject to federal income tax or Medicare liens.
One of the memos written by a lawyer representing some smokers in negotiations with the federal government said Justice lawyers "are steadfast in their position regarding their right of recovery from these payments," and they don't plan to give any guidance on how much money they will seek until they find out how many Medicare recipients are receiving checks.
The goal of the negotiations is to reach "a fair, global compromise" and set a reimbursement figure that would satisfy Medicare claims in one lump sum, one memo said.
The federal government contends it should be able to recover any money spent providing health care to sick smokers who are recovering money for care they didn't pay for.
But some lawyers for smokers say the fund isn't subject to federal taxes or Medicare liens because the fund is not part of a judgment for monetary damages caused by any illness.
It's not a duck, and it's not a goose. We don't know what it is.Fund trustee Miles McGrane III, on the $580 million trust fund being distributed to members of the former Engle class. The Justice Department is involved in talks with several attorneys in an effort to collect federal income tax and Medicare money from the fund.
The owner of a Kansas wholesale tobacco company and his business associates are charged in a 43-count federal indictment with a scheme to avoid paying taxes on cigarettes that cost the state of Oklahoma and Indian tribes $25 million in tax revenue.
The investigation was begun by the Bureau of Alcohol, Tobacco, Firearms and Explosives in April 2006, when a defendant was stopped by the Kansas Highway Patrol in Coffeyville, Kan. He was transporting a load of cigarettes worth more than $200,000 without required documents and appropriate tax stamps.
On Friday, Acting U.S. Attorney Marietta Parker announced the indictment in which the following defendants are charged:
Gary Lester Hall, 66, Joplin, Mo., the president and owner of Sunflower Supply Company, 1001 W. 7th, Galena, Kan. Hall also exercised control over other business entities including Discount Tobacco Warehouse, Inc., 402 Grand, Joplin, Mo.; National Tobacco Distributors; Rebel Industries, Inc.; Halls Collection, Inc.; Shawnee Tobacco Smoke Shop, 19801 NE 23rd Street, Harrah, Okla., and Sunflower Aircraft, Inc.
06/11/2008
CLERK'S ORDER filed [1121098] scheduling oral argument before Judges SENTELLE, TATEL, BROWN 10/14/2008 AM
The new group, based in the Swiss city of Lausanne, would be free from litigation and public relations problems in the United States over tobacco marketing.
The announcement of the details of the spinoff cheered financial markets but outraged anti-tobacco groups, which accuse Altria of seeking to shelter itself from lawsuits and potentially more-restrictive tobacco laws in its home market.
The ratings agencies Moody's and Standard & Poor's underscored the financial advantages of the spinoff for the new independent PMI. . . .
The PMI move has drawn criticism from Essential Action, a corporate accountability organization based in Washington, which is working with groups in 70 countries, asking governments to mitigate the negative health effects it sees in the sale.
"The breakup of Philip Morris will unleash a Philip Morris International that will be even more predatory in pushing its toxic products worldwide," said Robert Weissman, director of Essential Action.
"An independent Philip Morris International ... will no longer feel constrained by public opinion in its home country and most important market, the United States," he added.
Anna White of Essential Action pointed to a recent case in which a US judge ordered tobacco companies to stop using misleading terms like "light" and "mild" to describe their products.
"If an independent PMI had no connection to the United States, the judge would not have been able to issue this order," she said.
Premier Manufacturing, Inc., a South Carolina cigarette importer, has agreed to pay an additional $3.1 million to settle civil claims that between 1995 and 2002, it deliberately understated the weights of cigarettes that it imported, the Justice Department announced today. The company had previously agreed to pay $7.16 million in restitution as part of a criminal guilty plea that it entered in 2005. The settlement announced today covers civil claims the government had under the False Claims Act and two customs statutes.
Since the amount of customs duties owed on imported cigarettes is based in part on their weight, Premier avoided millions of dollars in customs duties. Under the False Claims Act, the United States is entitled to recover treble damages and penalties from those who knowingly submit false claims for payment to the government or who knowingly fail to pay money owed to the government.
The principal allegation in light cigarette lawsuits is that cigarette manufacturers have misled consumers by marketing light and low tar cigarettes as having less tar and nicotine than other brands, even though the actual exposure levels are no different. Those who smoked (and continue to smoke) light cigarettes, reasonably believing they were being exposed to less tar or nicotine, are seeking court-ordered damages for their losses. I believe that there have been about 40 lawsuits filed in 22 different states on the light cigarette issue. Certified class actions are pending in Massachusetts, Missouri, and New York at this time.
In fact, there is good reason to believe so called, “light, smooth, mild†cigarettes are potentially more dangerous to ones health than “full flavor†cigarettes.
An important key to uncovering the light cigarette fraud was Monograph 13 released by the National Cancer Institute in 2001.2 That monograph concludes that “cigarette manufacturers recognized the inherent deception of advertising that offered cigarettes as light [and]…as having the lowest tar and nicotine yields…†but went ahead anyway with that advertising. Shortly after the release of the monograph, it was announced that the FTC asked for guidance from DHHS to determine whether the FTC testing method could be improved and a working group was to convene in 2002, but I am unaware of any outcomes from this request for guidance.3 The FTC appears to have gone to sleep as Rip Van Winkle did in the famous children’s story and clearly needs congress to wake them up.
What has been happening in these lawsuits is that the cigarette companies have been using the lack of clarity around regulation of testing accuracy and the regulatory role of the FTC in two distinct and important ways . . .
Ultimately, this argument was defeated by the U.S. Supreme Court on June 11 of this year in a unanimous decision5 that echoed the conclusion of the Solicitor General that the FTC has not asserted control over the marketing of light cigarettes.
Court Remedies
The courts in many jurisdictions either refuse to certify a class, or reverse the certification of a class in the appellate courts, thereby sanctifying the tobacco industry’s misconduct and allowing them to continue this misconduct as we sit here. A solution is to consider legislation requiring that these cases be handled and certified as class actions, to encourage attorneys to take on what would ordinarily be a lawsuit on behalf of one individual with a very small damage claim. The tobacco industry knows that if a lawsuit cannot go forward as a class this will be the death knell of consumer claims. In addition, any money not claimed by consumers that is paid as part of a class action award by the tobacco industry, should be contributed to a cy pres fund.
This enormous fraud on the American people must stop. Federal legislation is needed to protect consumers from the cigarette industry’s practices with their “light†brands and defrauded consumers should have the right to be compensated for their loss. I think that U.S. District Judge Gladys Kessler got it right when she ruled last year that the cigarette companies were racketeers in U.S. v. Philip Morris. About the light cigarette fraud, she said:
Even as they engaged in a campaign to market and promote filtered and low tar cigarettes as less harmful than conventional ones, Defendants either lacked evidence to substantiate their claims or knew them to be false.6
She goes on to say:
There is an overwhelming consensus in the public health and scientific community, both here and abroad, that low tar cigarettes offer no health benefit to smokers, have not reduced the risk of lung cancer and heart disease for smokers using them, and have not produced any decrease in the incidence of lung cancer. Moreover, because of the misleading nature of the advertising for low tar cigarettes, smokers who might have quit have refrained from doing so in the belief that such cigarettes reduced their health risks.
Paul Minor is the son of Bill Minor, a legendary Mississippi journalist and chronicler of the civil rights movement. He is also a wealthy trial lawyer and a mainstay of Mississippi's embattled Democratic Party. Mr. Minor has contributed $500,000 to Democrats over the years, including more than $100,000 to John Edwards, a fellow trial lawyer. He fought hard to stop the Mississippi Supreme Court from being taken over by pro-business Republicans.
Mr. Minor's political activity may have cost him dearly. He is serving an 11-year sentence, convicted of a crime that does not look much like a crime at all. . . .
Mr. Minor’s prosecution, like the others in this scandal, gave a big boost to the Republican Party. The case intimidated trial lawyers into stopping their political activity. “The disappearance of the trial-lawyer money all but wiped out the Democratic Party in Mississippi,†Stephanie Mencimer reports in her book, “Blocking the Courthouse Door.â€
There also appears to have been pro-Republican favoritism. Mr. Minor’s lawyers say prosecutors were not interested in going after similar activity by trial lawyers who contributed to Republicans. Time magazine recently reported that in Alabama, one of the main witnesses against Mr. Siegelman also told prosecutors of possible corruption involving Jeff Sessions, a Republican senator from Alabama, but they did not pursue it.
And there is the matter of timing. The prosecution of Mr. Minor and Justice Diaz came just as Gov. Ronnie Musgrove, a Democrat, was running for re-election against Republican Haley Barbour. The Republicans spent heavily to tie Mr. Musgrove to Mr. Minor, and Mr. Musgrove was defeated.
For generations of Americans, the surgeon general has been the "nation's doctor", the person they turned to for unbiased advice on everything from smoking to obesity and HIV/Aids. But not under President George Bush, it now emerges.
Damning testimony of Dr Richard Carmona, the surgeon general from 2002 until last year, has revealed that the Bush administration frequently censored him and tried to mould his public statements to fit political goals. He was even ordered to mention President Bush three times on every page of his speeches. . . .
During a nine-month trial of the US tobacco industry, Dr Carmona was heavily leant upon not to testify. The same went for sex education: "However, there was already a policy in place that did not want to hear the science but wanted to preach abstinence only, but I felt that was scientifically incorrect," he said.
"Anything that doesn't fit into the political appointees' ideological, theological or political agenda is often ignored, marginalised or simply buried," Dr Carmona said. "There is nothing worse than ignoring science or marginalising the voice of science for reasons driven by changing political winds."
COUNT ONE: Title 18, United States Code, Section 371- Conspiracy
COUNT TWO THROUGH SIX Title 18, United States Code, Section 1344(2) - Bank Fraud