Big tobacco fines go up in smoke

On August 17 a federal judge ruled that tobacco companies violated the Racketeer Influenced and Corrupt Organizations (RICO) statute of the U.S. Criminal Code and ordered them to change the way they market cigarettes. U.S. District Court Judge Gladys Kessler concluded, however, that under federal law she could not impose the billions of dollars in penalties that had been sought by the Justice Department in its original civil racketeering suit against Big Tobacco.

Health researcher Michael Siegel, a School of Public Health professor, has served as an expert witness in several major tobacco litigation cases. He talked with BU Today about the ramifications of Kessler’s decision, which comes on the heels of a July ruling by the Florida Supreme Court tossing out a $145 billion verdict against five cigarette makers in a class action suit named for Howard Engle, one of the lead plaintiffs.

Siegel conducts research on the health effects of secondhand smoke, evaluations of tobacco control policies, and studies on cigarette advertising and marketing practices and their impact on youth. In 2001 he published a report that tobacco companies were continuing to promote their products to children.

BU Today: The Justice Department had been pursuing this case for seven years. Do you see Judge Kessler’s ruling as significant?

Siegel: The judge’s ruling that the requested monetary remedies are not allowable under the appellate court’s decision is extremely significant. It means that the tobacco companies are shielded from having to pay any large penalties, despite the finding of guilt on racketeering charges. Thus, they end up just getting a slap on the wrist. Most important, this essentially ends the risks of multibillion dollar damage payments for the companies. It is a substantial win for all the major cigarette companies.

Many antismoking advocates, of course, are disappointed with the ruling, especially considering the lack of monetary penalties. But Judge Kessler did find that the companies conspired to blatantly deceive the public. Are you generally pleased or displeased by the decision?

I am neither pleased nor displeased, because I see this simply as a decision about what is just under the law. In my view, Judge Kessler made the most rational, reasoned, and appropriate ruling. I think she correctly found the companies guilty of the racketeering charges, and that she also correctly ruled that remedies under the civil remedies provisions of RICO must be forward-looking and designed to prevent and restrain future wrongdoing, not to simply punish the companies or remedy the effects of past wrongdoing. While it may be unfortunate that these billions of dollars will not be available for smoking cessation and smoking education programs, that is the law, and it does not serve justice if the law is not followed.

The tobacco companies will be forced to make changes in their marketing — specifically, not using such terms as “low-tar,” “light,” and “mild.” Do you think this will impact cigarette sales?

No. I think the companies will be able to come up with a way of repackaging these “light” products using a different term. Even the color of the packaging is instantly recognizable to smokers, so they will be able to keep the colors the same and smokers will know what brand they are buying.

Will the corrective statements tobacco companies will be required to make — including the negative health effects of smoking and inhaling secondhand smoke, the addictiveness of smoking, and the companies’ manipulation of nicotine levels to enhance addiction — have a huge impact on the companies’ public image?

I don’t think so. The reason is that I think most of the public is already aware of the companies’ manipulation of nicotine levels and the health effects and addictiveness of smoking. I doubt it will be surprising to many people or come as big news to them. On the other hand, it is possible that some people might see the tobacco companies doing this and think that they are changing their ways and being more honest about their products. In a strange way, this could actually serve to enhance the public image of the companies.

Read Siegel’s views on the tobacco companies’ $246 billion master settlement agreement with 46 states in 1998 and its effects on smoking rates.