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DOJ Appeal: FINAL BRIEF FOR THE PLAINTIFF-INTERVENORS TOBACCO-FREE KIDS ACTION FUND, et al. March 12, 2012 

SUMMARY OF ARGUMENT

Defendants’ latest efforts to avoid the findings and remedies in this case must fail.

1. The Tobacco Control Act does not render this lawsuit moot.

Defendants present no facts demonstrating that they have ceased their unlawful practices, which continue. To the contrary, the new statute expressly provides that it does not “affect” this case in any way, and it covers different conduct than what was at issue here. Moreover, because Defendants are challenging key provisions of the statute, and other provisions have not even gone into effect, there is no basis upon which Defendants can legitimately contend that the mere enactment of the statute ended their decades-long campaign of fraud and deceit against the American public. Defendants also fail to explain why this particular statute will fundamentally constrain their misconduct despite their failure to comply with prior purported constraints such as the MSA.

2. The primary jurisdiction doctrine also has no application here. This case has already been decided, and, in any event, the FDA has no role in monitoring Defendants’ compliance with RICO.

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• Groups protest Family Dollar tobacco sales  

“We’re not in the business of judging our customers for their purchases,” said Family Dollar spokesman Joshua Braverman. “It’s just another category where we add the convenience for them.”

But in a letter to Family Dollar CEO Howard Levine, the Campaign for Tobacco-Free Kids and the Break Free Alliance said the increased availability of tobacco at Family Dollar’s 7,100 stores will add to customers’ health problems.

“Selling tobacco to your customers will make it easier for them to become addicted or sustain an existing addiction,” said the letter, co-signed by the groups’ directors. “The fact that your customer base is comprised of low-income families makes your decision even more troubling.”

The groups said about 26.9 percent of low-income adults smoke, compared to 19.3 percent of the total adult population.

Braverman told the Observer that Family Dollar customers smoke at a higher rate than the general population, which was one factor driving the decision to start selling tobacco.

“Our customer over-indexes as tobacco users,” Braverman said. “We know they’re going to other retailers to purchase their tobacco products.”

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SIEGEL: Campaign for Tobacco-Free Kids Lambasts Plan to Sell Tobacco Products at Family Dollar 

why is the Campaign for Tobacco-Free Kids not also calling for the following other stores to also discontinue the sale of cigarettes:

1st Stop at Phillips 66 gas stations

7-Eleven

Acme Express gas stations/convenience stores

ARCO gas stations

Albertsons Express gas stations/convenience stores . . .

I also don't see how the decision about whether or not to sell cigarettes at Family Dollar will affect the public's health. Does the Campaign for Tobacco-Free Kids really believe that smokers who are addicted to cigarettes will quit smoking only if Family Dollar does not sell cigarettes? And does the Campaign believe that teenagers who are interested in smoking will decide not to start smoking if they are unable to purchase cigarettes at the local Family Dollar store?

What this action does, however, is frame the sale of cigarettes as being perfectly acceptable and no threat to the public's health as long as it is not done at particular types of stores, especially those with "Family" in their names. . . .

The Campaign for Tobacco-Free Kids seems to have an obsession with interventions that look good politically and rouse up constituent donations, but which don't actually do anything to put a dent in smoking rates.

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• Tell Family Dollar: Tobacco Use Harms Families  

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The Kids Get It: Secondhand Smoke Kills  

• U.S. Business Groups Threaten New Zealand over Its Efforts to Reduce Tobacco Use 

It is appalling that several prominent U.S. business organizations have threatened retaliation against New Zealand if it pursues innovative proposals to reduce tobacco use. It sends the wrong message to the world about the priorities of American business when these organizations oppose legitimate measures designed to save lives and fight for the interests of an industry whose products will kill one billion people worldwide this century unless governments take effective action.

On Friday, the U.S. Chamber of Commerce and five other business organizations issued a statement threatening retaliation against New Zealand if it requires that cigarettes be sold in plain packaging, without colorful logos and other brand imagery. The letter stated, "We hope the New Zealand government will consider the concerns we have raised for the possible impact on New Zealand exports, such as dairy and wine, should other governments feel emboldened to take similar measures." Other organizations on the statement are the TransAtlantic Business Dialogue, the Emergency Committee for American Trade, the National Association of Manufacturers, the U.S. Council for International Business and the National Foreign Trade Council.

These U.S. organizations last year also opposed Australia's successful effort to enact the world's first law requiring plain cigarette packaging, which takes effect December 1. The United Kingdom is also considering a plain packaging requirement. Countries are proposing plain packaging to reduce the appeal of tobacco products to children, increase the effectiveness of health warnings and prevent tobacco companies from using package colors and imagery to imply that some cigarettes are less harmful, as they have often done. These efforts will prevent kids from smoking and save lives.

These countries are exercising their sovereign right to protect the health of their citizens from tobacco use, the world's number one cause of preventable death. We would be outraged if foreign businesses threatened the U.S. government when it acts to protect our citizens. We applaud New Zealand Prime Minister John Key for rejecting the U.S. organizations' arguments and defending his country's authority to act.

The statement from the U.S. business groups is part of a growing effort by the tobacco industry and its allies to bully countries and prevent them from implementing strong measures to reduce tobacco use.

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• VIDEO: ‘Ban on smoking boosts businesses’  

An anti-tobacco activist has revealed to RT the truth behind tobacco companies’ activities and cast doubts on businessmen’s fears that tobacco bans ruin their bars and restaurants.

Russia is soon to sign a document that will bolster its fight against smoking. It took 174 countries four years to finalize the "Protocol Against Illicit Tobacco Trade."

The document, due to be signed in November, seeks to protect the anti-smoking policies of signatory countries against the influence of tobacco producers.

"Russia has among the lowest taxes on tobacco products, and as a result, the highest smoking rates,” Matthew l. Myers, president of Campaign for Tobacco-Free Kids, told RT. “Over 60 per cent of your males smoke. Since 1991, the number of smokers among young girls has more than tripled.”

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Uproar in China over Tobacco Company’s Nomination for Science Prize 

New York City Legislation Would Require Disclosure of Residences' Smoking Policies, Allowing Renters and Buyers to Make Informed Decisions 

New York City Mayor Michael Bloomberg today has taken another important step to protect public health by proposing legislation requiring multi-unit residences to disclose their policies on where smoking is permitted to prospective renters and buyers.

Disclosing a building's smoking policy will help residents make informed decisions about how to protect themselves and their families from the serious health hazards of secondhand smoke. Secondhand smoke contains more than 7,000 chemicals, including hundreds that are toxic and at least 69 that cause cancer. According to the U.S. Surgeon General, secondhand smoke causes lung cancer and heart disease in nonsmoking adults. Among babies and children, it causes respiratory and ear infections, sudden infant death syndrome and more severe asthma attacks. Children, elderly people and individuals suffering from heart disease and asthma are especially at risk.

Residents deserve to know whether they will be subject to these serious health risks before deciding whether to buy or rent a home. This

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Annie's Mailbox: Keep up the smoking fight  

Tobacco Company CEOs Cash In While States Cut Back on Prevention 

See how your state stacks up against Big Tobacco's big paychecks

State tobacco prevention spending versus Big Tobacco CEO Pay

State FY12 State Spending ($millions)

Alabama $0.0

Connecticut $0.0

District of Columbia $0.0

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Indianapolis Council Again Delivers Victory for Smoke-Free Air – Mayor Ballard Should Sign Into Law  

The Indianapolis City-County Council tonight again delivered a victory for the public's right to breathe clean air by voting to make all restaurants and bars and most other workplaces smoke-free. We applaud the Council for its leadership and perseverance in working to improve the city's health, and we urge Mayor Greg Ballard to sign this legislation into law. It's time to protect all Indianapolis residents and workers from the serious health hazards of secondhand smoke.

Polling shows that 70 percent of Indianapolis voters support a law to make all restaurants, bars and other workplaces smoke-free. Going smoke-free now is right for Indianapolis. Indianapolis is currently the largest U.S. city without a strong smoke-free law that includes restaurants and bars. Nationwide, 29 states, Washington, DC, Puerto Rico, the U.S. Virgin Islands and more than 650 cities have such laws. As the Indianapolis City-County Council recognized, no one should have to put their health at risk in order to earn a paycheck or enjoy a night out.

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• Tobacco Company CEOs Cash In While States Cut Back on Prevention 

Pay packages for chief executives at the top three U.S. tobacco companies last year exceeded the amount of money being spent on tobacco prevention programs in all but three states.

New compensation disclosures made to the Securities and Exchange Commission and reported by the Associated Press show that just three men -- Lorillard Inc. CEO Murray Kessler, Altria Group CEO Michael E. Szymanczyk and Reynolds American chief Daniel M. Delen -- together pulled in $31.9 million in 2011.

That's more than every state except New York, Florida and California budgeted in fiscal year 2012 to keep kids from smoking and help smokers quit.

No matter how you parse the numbers, this mismatch is frighteningly clear: . . .

See how your state stacks up against Big Tobacco's big paychecks

State tobacco prevention spending versus Big Tobacco CEO Pay

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Guilty: Philip Morris Executive in Pakistan Fined for Violating Advertising Rules  

Ecuador Details