August 20, 2006

Tobacco Racketeers Get Off Easy

If only a public shaming were enough to punish the tobacco industry for its half-century of deception in promoting a product so damaging to the nation’s health. There are plenty of shameful acts depicted in a voluminous court opinion issued last week that found that five big tobacco companies had violated civil racketeering laws. But there is apparently nothing that can be done to force them to disgorge their ill-gotten profits or punish them for past mendacities.

Last week’s ruling by Judge Gladys Kessler in the Federal District Court for the District of Columbia amounted to a moral victory for prosecutors in a case they had originally hoped would impose huge financial penalties. The 1,742-page opinion lays out in painstaking detail how the industry has obfuscated the health consequences of smoking, duped people into thinking that low-tar and low-nicotine cigarettes might be less harmful, manipulated cigarette design to ensure an addictive dose of nicotine, downplayed the adverse effects of secondhand smoke and seduced young people into taking up smoking while denying that it was doing any such thing. To hide its tracks, the industry, abetted by its lawyers, suppressed research and destroyed documents.

The judge was clearly appalled that the companies marketed and sold their products “with zeal, with deception, with a single-minded focus on their financial success and without regard for the human tragedy or social costs that success exacted.” But she felt hemmed in by an appeals court decision, which held that under the civil racketeering statute, no damages could be imposed for past misdeeds, only remedies to restrain future misconduct.

That not only ruled out the huge $280 billion penalty originally sought when the suit was filed in 1999, but even, the judge concluded, the modest billions sought by prosecutors last year to help people quit smoking and reduce the incidence of youth smoking. All the judge felt she could do was to order the companies to mount an advertising campaign to correct years of misrepresentations and to stop using such misleading terms as “light” or “low tar” or “mild” to imply health benefits.

Even these remedies may be appealed by the companies. The prospects for reining in this rogue industry seem limited unless Congress finds the gumption to crack down — or top tobacco executives develop a conscience and decide to get out of the death-dealing business.


Copyright 2006 The New York Times Company