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Tobacco settlement challenges & opportunities

By Jeffrey Barg

In November, Pa. Attorney General Mike Fisher brought to a close what is arguably the Commonwealth’s most important public health litigation to date. Roughly a year-and-a-half after filing a lawsuit against the largest tobacco companies and perhaps a year before the suit would actually come to trial, Attorney General Fisher and attorneys general from 45 other states reached a settlement which could bring over $11 billion to Pennsylvania over 25 years and put curbs on marketing of tobacco products to youth.

Despite all of the hype, the settlement appears to be a mixed blessing. Many public health experts and groups such as former Surgeon General C. Everett Koop, former FDA Commissioner David Kessler and the American Lung Association have found the settlement to be short on public health policies and long on special legal protections for the tobacco industry. And there is no guarantee that any of the settlement money coming to Pennsylvania will be spent on tobacco control, public health or health care. Proposals have already been made that the money be used for tax rebates.

Some Pa. health groups and public interest advocates have adopted a dual track approach to the settlement. On the one hand, they have filed a Petition to Intervene in Pennsylvania’s lawsuit in order to preserve the right to file public interest lawsuits against the tobacco industry, while on the other, they are gearing up for a campaign to ensure that a reasonable portion of the settlement money be used to prevent escalating Pa. Medicaid expenditures of over $600 million annually for treating tobacco-related disease.

The Petition was originally filed by Robert Sklaroff, M.D., immediate past president of the Pennsylvania Society of Internal Medicine, William Godshall, executive director of SmokeFree Pennsylvania, and me. As of press time, eleven organizations have joined the petition including Philadelphia County Medical Society, American Academy of Pediatrics—Pa. chapter, SmokeFree Pennsylvania, Pennsylvania Public Interest Research Group, American Council on Science and Health, Citizens for Consumer Justice, Clean Air Council, Coalition for a Tobacco Free Pennsylvania, SmokeFree Educational Services, American Association of Public Health Physicians, and Peoples Medical Society. Other organizations are expected to sign on before the January 8th hearing date.

The Petition to Intervene was filed in response to the special legal protections extended the tobacco industry in the settlement. When lawsuits are settled, plaintiffs are customarily prohibited from suing the defendant for the same matter at issue. In the tobacco settlement, this practice is stretched beyond recognition in three directions. First, not only can’t the defendant be sued for the past misconduct alleged in the lawsuit, but also past misconduct not cited in the suit and future misconduct. Second, not only can’t the defendants be sued in the future, but also a wide array of “tobacco-related organizations,” including tobacco distributors and retailers, which are not named defendants in Pennsylvania’s lawsuit. Third, not only is the plaintiff (state attorney general) prohibited from suing, but other public entities such as local governments and public hospitals as well as private, non-political individuals and organizations are prohibited from filing public interest lawsuits. And if a court overturns the attorney general’s right to bar these other entities from suing, any award or settlement against the tobacco companies comes out of the state’s settlement, not from the tobacco companies, giving them a second layer of protection.

The practical impact of all these special legal protections for the tobacco companies is that they are free to commit a wide array of future misconduct immune from civil lawsuits, which have proven to be the most effective tool in curbing their abuses.

Take the marketing of tobacco products to children, for example. Despite the fact that it violates Pennsylvania law to sell tobacco products to minors, the tobacco companies have intentionally attracted and addicted children to their products, the attorney general’s lawsuit contends. Thus the lawsuit asks the court to order that each and every defendant “cease all marketing and sales practices that encourage children and adolescents to begin or continue to use tobacco products or facilitate their opportunity to do so.” The settlement is considerably weaker, however, prohibiting “taking any action, directly or indirectly, to target Youth … in the advertising, promotion or marketing of Tobacco Products, or taking any action the primary purpose of which is to initiate, maintain or increase the incidence of Youth smoking.” The differences between the two injunctions may seem obscure on first reading, but the first is based on impact on youth whereas the second is based on intention of the tobacco companies. Operating under the first injunction, the attorney general could quite easily argue that cigarette vending machines facilitate children’s opportunity to purchase tobacco products; under the second injunction he would have to prove that the primary purpose of utilizing cigarette vending machines is facilitating sales to children—a much more difficult case to make. Now he and his successors are forever prohibited from making the first argument. And the settlement seeks to prevent local governments and others from taking up either argument.

This example illustrates one of several hundred potential abuses that the tobacco industry has freedom to perpetuate under the settlement. The Petition to Intervene is intended to allow public interest lawsuits fill the vacuum created by the way the attorney general has prevented himself and his successors from protecting the public from those abuses.

As if this were not enough of a challenge, advocacy groups such as the Coalition for a Tobacco Free Pennsylvania will argue that progress against the number one cause of preventable death in Pennsylvania should be the first goal addressed when considering the use of settlement funds. This will be a significant challenge indeed as well-connected interest groups gear up to get their hands on the money. Squabbling between different health groups for the money will play into the hands of those who would divert the money to non-health-related or non-tobacco-related purposes.

The Centers for Disease Control and Prevention has come up with useful budget guidelines for comprehensive tobacco control programs in settling states, including Pennsylvania. Based on successful programs in California and Massachusetts, a Pennsylvania budget with a lower estimate of $64 million and an upper estimate of $182 million is divided across the following nine areas:

• Community programs to reduce tobacco use.

• Community programs to reduce the burden of tobacco-related diseases.

• School programs.

• Enforcement of tobacco-related laws on youth access and second-hand smoke.

• Partnership grants with organizations to build community assets.

• Counter-tobacco marketing campaigns.

• Smoking cessation programs.

• Research on the impact of interventions.

• Administration and management.

Beginning in January, advocates will attempt to craft a concrete budget proposal based on these guidelines. Support will then be sought among a broad range of health groups, the legislature, the Ridge administration and the public at large.

The challenges will certainly be great, but they are only matched by the tremendous opportunity the flawed tobacco settlement presents.

Jeffrey Barg is president of the Coalition for a Tobacco Free Pennsylvania and chair of the Tobacco-free Education and Action Coalition for Health (TEACH).

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