- The Washington Times - Saturday, May 23, 2009

A D.C. federal appeals court Friday upheld a landmark ruling by a lower court that the largest tobacco companies engaged in a decades-long conspiracy to mislead the public about the addictiveness and ill effects of cigarette smoking, even as evidence mounted that smoking caused a host of health issues, including lung disease and cancer.

The three-judge panel unanimously agreed, in a 92-page decision, with the lower court’s decision in 2006 to ban tobacco companies from marketing cigarettes as “low tar” or “light,” because there is no evidence such cigarettes are safer. The imposition of that order has been put off pending the outcome of the appeals.

“Today’s decision by the U.S. Court of Appeals represents a dramatic victory for public health and an emphatic condemnation of the tobacco industry and its behavior,” said Matthew L. Myers, president of the Campaign for Tobacco-Free Kids, which intervened in the case.

The tobacco companies plan to appeal.

Murray Garnick, associate general counsel with Altria Group, the parent company of Philip Morris USA, said the companies “continue to believe that the court’s conclusions are not supported by the law or the evidence presented at trial, and we believe the exceptional importance of these issues justifies further review.”

he Justice Department, which prosecuted the case, said it was satisfied with the decision.

“This ruling is a victory for the American people that bans the use of misleading terms such as ‘light and low tar,’ and provides the government with the ability to pursue these companies should they continue with their deceptive practices,” said U.S. Deputy Attorney General David Ogden.

While the appeals court upheld that the tobacco companies violated the Racketeer Influenced and Corrupt Organizations (RICO) Act - a law generally reserved for mobsters - it did not completely agree with the government’s position.

The judges denied the Justice Department’s request that the companies pay $10 billion for a national smoking cessation program, anti-smoking marketing campaign and monitoring of the companies. The trial court previously denied those requests.

The appeals court also upheld the denial of disgorgement, a process that would have required the tobacco companies to pay back the profits they earned through illegal business practices. The government originally hoped to recoup $300 billion from the tobacco companies.

The Justice Department first filed suit in 1999 against tobacco giants and relied on novel racketeering allegations in bringing the case.

After a nine-month trial that began in 2004, U.S. District Court Judge Gladys Kessler found several tobacco companies, including Philip Morris, R.J. Reynolds and Brown & Williamson, guilty of racketeering.

According to court records, the heads of the largest tobacco companies met in 1953 to figure out a way to deflect the growing health worries related to smoking. The companies agreed that no brand would advertise as being any safer than the others and they issued a joint advertisement the following year that claimed the health concerns about cigarettes were an “open question.”

“Evidence at trial revealed that at the same time defendants were disseminating advertisements, publications, and public statements denying any adverse health effects of smoking and promoting their ‘open question’ strategy of sowing doubt, they internally acknowledged as fact that smoking causes disease and other health hazards,” wrote the appeals court panel made up of Chief Judge David B. Sentelle, Judge David S. Tatel and Judge Janice Rogers Brown.

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