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Editor: C. Calvin Warriner
Profession: Cigarette & Tobacco Attorney

In 1969, Congress stepped in to require health hazard warnings on cigarette packaging and restrictions on tobacco advertising. Since that time, Big Tobacco, armed to the teeth with millions of dollars of dispensable advertising money and other resources, has traveled on different roads to deliver false statements to the ears of little children. Big Tobacco has trucked along the throughways of deception to come up with dangerous cigarette design, and false health reassurances connected with selling "low-tar" cigarettes.

But, all roads leading away from justice eventually lead right back to justice. And once in a while, an astute judge, who has a passion for justice, stands at the crossroads. After having read every word on every page of every document that managed hit the Court's file drawers, Judge Kessler raised her hand to put a stop to Big Tobacco's continuing deception.

In fact the District Court (D.C. Circuit), Judge Gladys Kessler, denied Philip Morris, et al., their Motion for stay of judgment pending appeal of her decision, finding that the major tobacco defendants have violated, and continue to violate the Racketeer Influenced and Corrupt Organizations Act (RICO). After hearing arguments, Judge Kessler fully understood that Big Tobacco has not stopped and does not intend to stop manipulating the design and composition of cigarettes to addict the public. Likewise, Big tobacco has no remorse about deceiving Americans of all ages, particularly children, about "health benefits" from smoking "low-tar" cigarettes.

The Kessler decision (at 449 F.Supp.2d 1) was so long (approximately 1600 pages) that Westlaw, the company that reports the Court's decisions, had to divide it into six (6) parts. The Kessler decision included several hundred pages of briefs and other related documents, for example, trial filings for corrective statements, witness declarations, emergency motions, oppositions, motions to intervene, offers of proof, memoranda, reply memoranda, and Amicus briefs, just to mention a few. After years of litigation, Big Tobacco has become expert at piling on a myriad of paper to delay-and-confuse. Such confusion and delay has allowed Big Tobacco to make end runs around the justice system, while continuing to ply its corrupt activities in the marketplace.

After the D.C. Circuit's judgment, Big Tobacco came whining to Judge Kessler about a nagging economic need for a stay of judgment that would be effectively tugging at tobacco's purse strings. To Big Tobacco's detriment, Judge Kessler held that tobacco companies had lied to the American public for decades-and, much worse, that Big Tobacco continues to lie-about the risks of their products and to lie in their marketing to children. The bottom line: Big Tobacco has caused enormous harm to our nation's health (see 449 F.Supp.2d 988, and the other five sections of Judge Kessler's opinion).

Judge Kessler responded to Big Tobacco's lame argument in the following eloquent manner:

[T]he Court concludes that the public interest will be best served by denial of the stay pending appeal, that there is a very substantial likelihood that many individuals (particularly impressionable youth, and the vulnerable very young and very old exposed to ETS [Environmental Tobacco Smoke]) will be harmed if the stay is granted, and that those considerations far outweigh Defendants' purely economic concerns about losing what may, at most, be unrecoverable market share if the stay is denied.

Wonderful, you say? Hold your horses! According to the American Cancer Society (ACS) and the Court's opinion, Judge Kessler also concluded, that a prior D.C. Circuit Court ruling prevented her from ordering appropriate remedies commensurate with the enormity of the harm. As a result, the ACS has suggested that all public health leaders urge the Department of Justice to appeal the Court's remedies, and to seek stronger remedies. One of the stronger remedies that the ACS had mentioned in its letter to U.S. Attorney General, Alberto Gonzales was: "Significant financial penalties if tobacco companies continue to market to our children and fail to achieve targets for reducing youth smoking rates."

There ought to be a penalty.