D.C. Circuit to Hear Appeal Today in Landmark Tobacco Case

The D.C. Circuit is scheduled to hear arguments today in a landmark ruling against the tobacco industry. In 1999, the Justice Department brought a civil RICO case against several tobacco companies, claiming that they misled the public about the health hazards of smoking. In August 2006, District Court Judge Gladys Kessler found that the companies violated civil RICO (in a 1683-page opinion found here). However, she declined to order them to pay the billions of dollars in damages sought by the Justice Department (her 18-page remedial order can be found here). Notably, she did order that the companies pay legal fees, which the government estimates to be over $140 million. This article from the Washington Times summarizes additional aspects of her ruling:

Kessler, however, did order the companies to publish in newspapers and on their Web sites “corrective statements” on the adverse health effects and addictiveness of smoking and nicotine. She also ordered tobacco companies to stop labeling cigarettes as “low tar,” “light,” “ultra light” or “mild,” since such cigarettes have been found to be no safer than others because of how people smoke them.

In her ruling in the long-running case, the judge said, “Over the course of more than 50 years, defendants lied, misrepresented and deceived the American public, including smokers and the young people they avidly sought as ‘replacement smokers,’ about the devastating health effects of smoking and environmental tobacco smoke (secondhand smoke).”

Kessler, who presided over a nonjury trial in the case, said that adoption of a national stop-smoking program, as sought by the government, “would unquestionably serve the public interest” but that she was barred by an appeals court ruling that said remedies must be forward-looking and not penalties for past actions.

If upheld, the case could open the door for a flood of private civil RICO claims against the industry.