Essential Action, along with the City and County of San Francisco, the Asian-Pacific Islander American Health Forum, the San Francisco African American Tobacco Free Project (SFAATFP), and the Black Network In Children's Emotional Health (BNICEH), in August 2005 filed an amicus brief in the U.S. federal government's RICO (Racketeer Influenced and Corrupt Organization Act) case against the tobacco industry. Our brief proposes a range of restraints and requirements related to the defendants that we argue should apply internationally. Judge Gladys Kessler, who is handling the case, has agreed to consider the brief.

In the case, the government alleges that the tobacco industry has engaged in a five-decade-long conspiracy to defraud the American people. If the judge finds the defendants to have violated the law, then she will issue a ruling on remedies -- requirements imposed on the defendants to prevent them from engaging in future fraudulent activity.

The framework of the case requires that arguments about remedies be justified in terms of the impact in the United States. Although it may be possible in the future to bring a case in the United States under the same law related to the impact of the industry's activities outside of the United States, this is not that case. Still, remedies applies in an international context with the intent to benefit the United States would certainly have benefits in other countries.

The brief from Essential Action and our partners argues that because the tobacco industry is globalized, U.S. tobacco control efforts must take into account the international operations of the tobacco industry in order to be effective in the United States. We urge that a number of the remedies proposed by the government therefore apply internationally, and to the foreign affiliates of the defendants with international operations, Philip Morris/Altria and BAT. We also recommend some remedies not proposed by the government, and argue that they too should apply internationally and to the foreign subsidiaries.

Among our recommendations:

• Philip Morris and BAT should be required to publicly disclose and post on the Internet all company documents related to health and science issues, and to marketing, including documents generated outside of the United States and related to markets outside of the United States.

• Philip Morris and BAT should be required to publicly disclose support for all front organizations that have significant impacts in the United States, wherever they are based (example: the ETS Consultancy).

• Philip Morris and BAT should be prohibited from representing that low-tar and/or lower-nicotine cigarettes are less hazardous, anywhere in the world.

• All brand-name sponsorships or product placement that have significant effects in the United States (e.g., sponsorship of Formula One racing, or Philip Morris International product placements with Hollywood) should be prohibited.

LINKS:

Our amicus brief
www.essentialaction.org/tobacco/doj/brief.pdf

Motion for leave to file amicus brief
www.essentialaction.org/tobacco/doj/motion.pdf

The industry's motion arguing that our brief should be rejected
www.essentialaction.org/tobacco/doj/opposition.pdf

Our reply to the industry's motion
www.essentialaction.org/tobacco/doj/reply.pdf

The judge's order that our brief, and others amicus filings, will be accepted for consideration
www.essentialaction.org/tobacco/doj/courtorder.pdf

A number of U.S. public health groups have obtained "intervenor" status in the case, which means they are effectively parties with regard to the determination of remedies. The intervenor brief and related materials adopted and incorporated many of the proposals that we made. Those materials are at: www.tobaccofreekids.org/reports/doj/

The U.S. government has posted many key documents in the case, including their proposed remedies, on their web page. Also on the web page is the written testimony of the government's witnesses, and a 2500-page "proposed findings of fact," which is an excellent presentation of much of the industry's wrongdoing over the last 50 years. This material is available at: www.usdoj.gov/civil/cases/tobacco2/

Finally, Gene Borio and colleagues have been maintaining a blog on the trial. It has commentary on the day-by-day testimony, plus contains lots of the key filings in the case. It is at: www.tobacco-on-trial.com/