Today the Solicitor General of the United States filed a Petition for Writ of Certiorari with the Supreme Court of the United States seeking review of a 2-1 pre-trial ruling by the U.S. Court of Appeals for the D.C. Circuit.  That ruling strictly limited the remedies available to the district court judge when she found that the cigarette industry engaged in racketeering in 2006.  The Petitioners largely agree with the dissent in that decision that would permit the District Court more leeway in fashioning an appropriate set of remedies.

The pre-trial ruling for which the United States seeks review rejected the proposed remedy under the civil provisions of the Racketeer Influenced and Corrupt Organizations Act (RICO) seeking forfeiture of the cigarette industry’s ill-gotten gains flowing from sales to children.  It also limited other potential remedies that often available to the judiciary unless they were clearly “forward looking” and carefully tailored to prevent future RICO violations.

In 2005, when it appeared that political concerns in the Department of Justice might be interfering with the prosecution of the trial, the district judge approved a number of public health groups to join as parties to the action.  Led by Tobacco Free Kids Action Fund, they too are seeking Supreme Court review of the pre-trial decision and are seeking public health remedies that could have a greater impact on tobacco control.

Philip Morris, as expected, is seeking review of the district court’s decision that found that the cigarette companies were liable under RICO.  The other cigarette industry defendants are likely to appeal independently.

Mark Gottlieb, Director of the Tobacco Products Liability Project at Northeastern University School of Law in Boston said: “The Solicitor General’s Petition is enormously important because it could result in a second opportunity for the District Court to mete out justice with a fuller option of remedies in its arsenal. These could include disgorgement of ill-gotten gains; industry-funded cessation programs; counter-marketing; and many other remedies.”

Edward L. Sweda, Jr., Senior Attorney for the Tobacco Products Liability Project noted that: “Freed from the constraints of the pre-trial decision by the DC Circuit Court of Appeals, the District Court would be able to reshape the public health landscape around cigarettes and prevent future violations of RICO.”

See more on the case and trial here.

VIDEO:   State Spends Less On Tobacco Prevention Programs, Report Says (WCVB-Boston 12/9/09)

-- Staff Attorney, Cara Wilking, Presents Poster

On December 2, 2009, Mark Gottlieb and Cara Wilking presented a poster to the Robert Wood Johnson Foundation’s Healthy Eating Research program grantees in Tucson, Arizona.

PHAI is exploring how state consumer protection laws can be used to address unfair and deceptive food and beverage marketing practices directed toward children or those who purchase food and beverages for children.  Such state laws may permit private citizens, attorneys general or prosecutors to bring actions consumer fraud.

Recently, Connecticut state attorney general Richard Blumenthal launched an investigation into the Smart Choices labeling program. The eight large food companies that participated in the labeling program (ConAgra Foods, General Mills, Inc., Kellogg Company, Kraft Foods, PepsiCo, Inc., Riviana Foods, Sun-Maid and Unilever) have agreed to remove the program’s logo from their products, at least during the investigation.

PHAI’s findings will be available by the Fall of 2010.

Last week’s $300 million verdict, which could still be reversed or reduced on appeal, provides a strong incentive for others to sue.

Big awards can send a message to the tobacco industry, or be regarded as simply a cost of doing business. Mark Gottlieb, director of the Tobacco Products Liability Project, says more class-action suits are needed, with settlements requiring the industry to finance effective counter-marketing. State settlement money pays for the hard-hitting “truth” campaign, a nationwide effort that aims to discourage young people from smoking.

While it is always nice to be mentioned an the editorial pages of a prestigious paper, what is really important is that jurors are more frequently having the opportunity to learn about the conduct of cigarette companies and, through the civil justice system, send the message that it is unacceptable.

Edward L. Sweda, Jr., Senior Attorney for the Tobacco Products Liability Project (TPLP) at Northeastern University School of Law in Boston, was delighted with the jury’s verdict. “Clearly, this jury recognized the outrageous and reprehensible misconduct by Philip Morris and appropriately expressed its outrage by awarding $244,000,000 in punitive damages. This jury went far beyond a slap on the wrists and, instead, hit Philip Morris hard in order to punish the company for its extraordinary wrongdoing and to deter Philip Morris and other tobacco companies from committing similar wrongdoing in the future,” Sweda said.

Mark Gottlieb, TPLP’s Director, noted that “trial lawyers should be encouraged by the success that plaintiffs in Florida have been able to achieve when juries have had the chance to review the evidence of cigarette makers’ astonishing misconduct.”

Thursday’s verdict was the tenth verdict this year in Engle progeny cases in Florida. 8 out of those 10 verdicts have been for the plaintiffs; the jury verdict in the Naugle case was the largest of the eight plaintiff verdicts. Thousands of other Engle progeny cases remain in the pipeline, awaiting trial in Florida.

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The Tobacco Products Liability Project (TPLP) is a project of the Public Health Advocacy Institute, which is based at Northeastern University School of Law in Boston.

Download the document here (pdf).

• Download Webinar Archive (approximately 1 hour – requires Windows Media Player)

Issue Brief Topics:

1. Corporate Social Responsibility Overview
2. Manipulating Science
3. Manipulating the Press
4. Manipulating the Public and Regulators
5. Youth Smoking

All briefs are in PDF format.

Recent surveys conducted by the Public Health Advocacy Institute (PHAI) at the Northeastern University School of Law show a high demand for smoke-free policies among residents.  PHAI is working with the Massachusetts Department of Public Health to encourage the voluntary implementation of building-wide smoke free rules in multiunit dwellings.

Click here for full survey results.

“There’s a great demand for smoke-free housing,” said Chris Banthin, Director of PHAI.    “Whether or not to go smoke-free is a decision for the residents and owners of multiunit dwellings.  Our role is to give residents and owners the information they need to make an informed decision.”

The survey of 1,300 residents of multiunit dwellings yielded the following key findings:

• Of the residents who currently live in a smoke-free multi-unit building, 91% support the rule. Just 2% are opposed.
• 81% of prospective residents are immediately less interested in an apartment or condominium unit if they smell tobacco smoke when looking at it.
• 75% of residents who do not currently live in a smoke-free building would support the immediate implementation of a no smoking rule or remain neutral.
• 69% of residents of multi-unit properties are more interested in knowing up front, in the property listing that an apartment or condominium unit is located in smoke-free building. Fewer than 20% feel this listing information would make no difference in their decision.
• The levels of support and demand are widely held, remaining consistent across gender, age, educational status, income level and housing type.

The survey of 300 owners of residential rental properties found the following key findings:

• 99% of the landlords who had implemented a smoke-free rule felt it was a good decision.
• 90% of the landlords who had implemented a smoke-free rule reported that implementation was easy or very easy.
• 93.3% of the owners who had implemented a smoke-free rule reported that the rule was virtually self-enforcing, the same as enforcing any other rule or easy to enforce.
• 66% of the owners reported having to pay $100 or more extra in smoking-related maintenance costs per apartment compared to an apartment where smoking was not allowed. 33% expended more than $500 extra per unit.
• 78% of the owners who had implemented a smoke-free rule reported no effect on vacancy or turnover rates.

A no smoking rule is an effective way to protect residents from exposure to secondhand smoke, according to the PHAI.  PHAI provides education as well as technical and legal guidance directly to owners and residents across the entire spectrum of housing types.  Those who smoke are welcome in smoke free properties, they are just asked to smoke outside so that their neighbors are not exposed to this health hazard.

The US EPA classifies secondhand smoke as a Human (Group A) Carcinogen, with no safe level of exposure.  This is the same category as Asbestos, Benzene and other highly toxic substances.  Exposure to secondhand smoke is the third leading preventable cause of death in Massachusetts.

The resident survey included 1,304 telephone interviews with residents of multi-unit properties in Amherst, Cambridge, Brookline, Easthampton, Hadley, Jamaica Plain, Newton, Northampton, Somerville, Southampton and Watertown.  The questionnaire screened respondents to ensure that they resided in a multi-unit rental property or condominium before asking questions designed to measure demand for smoke-free rules.  The owner survey included 300 written questionnaires completed by respondents in the same communities as the resident survey.

In conjunction will local health departments, he Public Health Advocacy Institute will be holding free meetings in Brookline, Cambridge, and Northampton, MA  to give basic legal advice, provide sample lease and condominium documents, and share the latest market research on the demand for smoke-free properties. Q&A sessions will follow each presentation.

The dates and times are:

May 4, 2009
Brookline Library (see printable information for this event)
6:30pm-7:30pm; 7:30pm-8:30pm

May 6, 2009
Brookline Health Department
10am-11am; 11am-12noon; 2om-3pm; 3:30pm-4:30pm

May 18, 2009
Cambridge, Cambridge Health Alliance’s Windsor Street Clinic
6pm-7pm; 7:30pm-8:30pm

May 20, 2009
Cambridge, Cambridge Health Alliance’s Windsor Street Clinic
1:30pm-2:30pm; 3pm-4pm

June 10, 2009
Northampton, Forbes Library
1pm-2pm; 5:30pm-6:30pm; 7pm-8pm

For more information on the issue, visit:

http://www.makesmokinghistory.org/secondhandsmoke/housing.html

Note:  The Massachusetts Department of Public Health and the Public
Health Advocacy Institute have developed guides on how to implement a
smoke-free rule in condominiums and residential rental properties. The guides
are available at http://www.makesmokinghistory.org