Where there is smoke...

Copyright 1999 Washington Times
September 27, 1999

Attention press flacks, advertising executives and publishers. Have you put out a press release or published an ad in defense of a politically incorrect industry? Have you, on behalf of that industry, used your First Amendment freedoms to criticize a government official? If so, the Justice Department may have a few questions for you. You may be guilty of racketeering.

Press releases and advertisements turn out to be key evidence in the suit Attorney General Janet Reno announced the department is filing against the tobacco industry. The industry, she said, has relied on deceit and falsehood to mislead everyone about the real dangers of smoking. Now the feds want to recover the cost of treating persons suffering from smoking-related diseases whom the companies so terribly misled.

Coming from her, the announcement was remarkable enough. It was just two years ago that Miss Reno told lawmakers that in her opinion, the federal government had no "independent cause of action" against the industry. That is, there was no federal law under which Justice could bring suit. But under pressure from President Clinton, who promised in his State of the Union remarks that the feds would sue, the department abruptly discovered that as a matter of fact it could seek reimbursement of costs under two health care statutes as well as the Racketeer Influenced and Corrupt Organizations Act (RICO). Former Clinton aide Rahm Emanuel told the Wall Street Journal in May that if "the White House hadn't asked, the Justice Department would never have looked at it again."

It's a little surreal to be lectured by the Clinton administration about the dangers of fraud and deceit, but there it is. How did the industry wage its misleading war on the truth? Flip to the appendix in the suit and start with charge No. 1: "On or about January 4, 1954, defendants PHILIP MORRIS, REYNOLDS, BROWN & WILLIAMSON, LORILLARD, AMERICAN, and co-conspirators caused to be placed in numerous newspapers nationwide, including The Washington Post, a daily newspaper, an advertisement entitled 'A Frank Statement To Smokers,' which newspaper was then sent and delivered by the United States mails to subscribers and others. In this advertisement, defendants promised to safeguard the health of smokers, support disinterested research into smoking and health, and reveal to the public the results of research into the effects of smoking on smokers' health." According to the Justice Department, taking out an ad in the newspaper constitutes mail fraud. One wonders if the newspaper should be considered a co-conspirator for having published the ad.

Racketeering count No. 3 states that in November 1959, the industry "did knowingly cause a press release to be sent and delivered by the United States mails to newspapers and news outlets. This press release contained statements attacking an article written by then-United States Surgeon General Leroy Burney about the hazards of smoking." There you have it. Sending out press releases disagreeing with the surgeon general constitutes a federal crime. Count 31 cites an internal industry letter seeking financial support for research showing air pollution causes chronic health problems often attributed to smoking. In his book, "Earth in the Balance," Vice President Al Gore says the "direct effect on human health can be seen vividly in the hazy, smog-choked skies." Is the Justice Department going to charge Mr. Gore with racketeering?

Turning public relations and newspaper advertising into federal crimes is going to be difficult enough for Miss Reno. But her agency is also going to have to show implausibly enough that 1) Americans were not aware of the risks of smoking and therefore did not assume those risks and 2) that the feds themselves were not partly responsible for the health problems given, for example, that they were merrily handing out packs of cigarettes to WWII soldiers. It's an absurd argument but one, as noted above, that more than just the tobacco industry has a stake in winning.

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