Tuesday, August 19, 2003 :::
 

Smoker's Rights of Oklahoma's

monthly meetings
are now being held at
Al's BBQ
44 S.W. 44th St
Oklahoma City, Ok.

Meetings start at 7:00 P.M. but most of us are there by around 6:30 so we can enjoy a great supper from Al's BBQ menus.
Click here for a complete set of street maps to Al's BBQ Restaurant.

Our Smoker's Rights Picnic will be held in the North pavillon at Will Roger's park at 36th & North Portland in Oklahoma. The festivities will start at 1:00 P.M. and will last until 4:00 P.M. Won't you join us there?

And here is the map to our Smoker's Rights Picnic.

Where has the tobacco money gone?

State and federal governments have an unprecedented amount of money available to them to reduce youth smoking, through payments from the Master Settlement Agreement (MSA) and other similar settlements. These settlements give states up to $246 billion from tobacco companies over a 25-year period that can be used to support antismoking efforts. Future annual payments, based upon inflation and cigarette sales, will continue into perpetuity.

Although the MSA repeatedly mentions "implementation of tobacco-related public health measures," each state decides how its MSA funds are spent. Tobacco companies do not have any input into how the states spend their settlement funds. R.J. Reynolds Tobacco Company believes that states should take advantage of having unprecedented funds available to combat youth smoking, and that a significant portion of the states' payments should be spent on preventing tobacco use among minors.

Now that four years have passed since the MSA was signed, where has the money gone so far? When the MSA was signed, the states held press conferences proclaiming that they would spend the money on smoking education, cessation and research. They talked about protecting youth and improving public health. However, it seems to have become a classic "bait and switch" operation. The states have squandered billions of dollars on pet projects such as golf courses and horse-breeding farms, pork-barrel projects such as roads and bridges and state-budget deficit reductions - items completely unrelated to the stated purpose of the settlement funds.

When the MSA was signed, the Attorneys General and plaintiffs lawyers held press conferences and talked about using the money for public health and protecting kids. Washington Attorney General Christine Gregoire said, "Washington state's proceeds from the tobacco industry settlement should be spent on public health issues or the integrity of the historic agreement will be violated."

"This agreement provides significant benefits to Montana and to Montanans. It will settle the state's damage claims against big tobacco. It will provide useful tools to educate the public - particularly young people - about the dangers of tobacco use, and to meet other health-related needs," said Montana Attorney General Joe Mazurek.

In fact, states have spent a large portion of MSA funds on projects totally unrelated to youth smoking prevention and tobacco control. Among the projects for which MSA funds have already been spent:

Dump trucks, golf carts, a golf course irrigation system and a new county jail in New York
Broadband cable networks in Virginia
Psychiatric care for prisoners in New Jersey
Boot camps for juvenile delinquents, alternative schools, and metal detectors and surveillance cameras for schools in Alabama
Upgrading public television stations with DVD technology in Nevada
Harbor renovation and museum expansion in Alaska
Water and sewer improvements in South Carolina
Pasture and weather monitoring for a thoroughbred association in Kentucky
College scholarships in Michigan
New schools in Ohio
City parks and the purchase of undeveloped land in California
A senior citizen prescription drug program and property tax rebates in Illinois
Medicaid dental services in Maine
Water Resources Trust Fund and flood-control projects in North Dakota
Operating expenses for the Carolina Horse Park, truck-driver training, pine-straw farming research and equipment upgrades at a knitting plant in North Carolina

A People's Trust Fund in South Dakota will generate interest income that can be spent on whatever the legislature wishes

Four years of MSA money was used to help balance the budget in Tennessee
Rural economic development in Georgia
Tax rebates in several states
Municipal bonds, backed by future MSA payments, were sold in Wisconsin and half of the money was spent to offset a revenue shortfall

The National Conference of State Legislatures (NCSL) analyzed state plans for spending MSA funds during fiscal years 2000 through 2003. Of the total $33.1 billion in MSA funds that states will receive during this period, more than half of the money was earmarked for projects totally unrelated to smoking. Click here to view NCSL's summary of allocations of tobacco revenues by category for fiscal years 2000 to 2003.

The U.S. Centers for Disease Control and Prevention (CDC) recommended that approximately 20 to 25 percent of the MSA payments go toward smoking prevention programs. By the end of 2001, states had received more than $13.4 billion in MSA payments. However, only seven states (Arizona, Indiana, Maine, Massachusetts, Mississippi, Ohio and Vermont) had met or exceeded the CDC's minimum funding recommendations for tobacco control programs.

In its analysis of MSA payment expenditures evaluated since the MSA was signed through July 2002, the Campaign for Tobacco-Free Kids (CTFK) found:

Only five states funded tobacco prevention programs at levels that meet the CDC's minimum recommendation.
Nineteen states (including the five above) have committed even 50 percent of the minimum funding level recommended by CDC.

Sixteen states committed modest amounts (between 35 and 50 percent) of MSA funds to tobacco prevention programs.
Twelve states committed minimal amounts (less than 25 percent) of MSA funds to tobacco prevention programs.

Three states and the District of Columbia committed no MSA funds to tobacco prevention programs. According to their analysis, the CTFK says, "We have found that most states have not kept their promises - only a handful of states have funded tobacco prevention programs at the minimum level recommended by the U.S. Centers for Disease Control and Prevention, and the majority of states have failed to fund prevention at even half the CDC minimum."

A June 2001 General Accounting Office (GAO) report found that states allocated about seven percent of the nearly $13.5 billion in MSA payments made from December 1999 through April 2001 for new or expanded tobacco control programs. The GAO also found that 36 states spent zero or less than 10 percent of MSA monies on tobacco control.

What can you do?

The states' greed penalizes adults who choose to smoke. It's not tobacco companies that are paying the freight for government tobacco profits; the settlement payments and cigarette taxes come out of the price that smokers pay for a pack of cigarettes. And the government makes more money off cigarettes per minute than the average family makes in a year.

Tobacco settlement payments have resulted in unprecedented increases in the price of a pack of cigarettes. In 2001, government collections of settlement payments and tax revenues accounted for nearly half of the price of a pack of cigarettes. From 1999-2001, the government collected over $88 billion in settlement payments and cigarette taxes; yet many states have enacted or are proposing even higher cigarette excise taxes. They expect the 23 percent of the U.S. adult population that smokes to pay even more for cigarettes to cover state budget deficits, too. Click here to view more information about tobacco taxes and revenues.

State officials should take the opinions of adult smokers into account when reviewing funding and budget issues or voting on proposed legislation. Sometimes it's hard to believe that one voice can make a difference, but it can. And when many smokers speak out, the message is even stronger.

Find out what is being done with MSA funds in your state. Contact the Attorney General's office in your state and your state's elected officials to find out where the money is going.

Several states have made progress toward assuring that MSA dollars are spent as intended. For example, Oklahoma voters voted to amend their state constitution to require that their state's MSA monies be placed into a trust fund where only the interest on the money can be spent, and then only on health care. Ask elected officials in your state to do the same.

Write letters to the editor of your local newspaper and ask elected officials to spend MSA funds on youth-smoking prevention. Click here to view MSA payments and expenditures by state.

R.J. Reynolds Tobacco Company - Tobacco Issues: Where Has the MSA Money Gone?

::: posted by Creditwrench at 2:42 AM



Sunday, August 17, 2003 :::
 

Tobacco Company Wins Low-Tar Cigarette Case

Asher Hawkins
The Legal Intelligencer
08-19-2003


A tobacco company is not liable for the death of a man who contracted fatal lung cancer even though he smoked the company's low-tar cigarette brand, a 12-person Philadelphia jury decided unanimously on Friday.

In the case of Eiser v. Brown & Williamson, et al., a jury in Philadelphia's Court of Common Pleas handed down a verdict for the defendants, Brown & Williamson Tobacco Corp. and its parent company, British American Tobacco (Investments) Ltd., in the wrongful-death suit.

William Eiser died of lung cancer in December 1999 at the age of 54. He had owned a delicatessen in South Philadelphia. Eiser had smoked Carlton cigarettes for 28 years, switching to the brand because he was aware of the health risks of smoking cigarettes and saw advertisements labeling Carltons as low in tar. Carltons were originally produced by the American Tobacco Co., which merged with B&W in 1995, and are currently produced by B&W.

Eiser, who was diagnosed with lung cancer in 1998, filed suit against B&W, British American Tobacco and several tobacco industry associations in March 1999. He was deposed by video before his death. His action was carried forward by his wife, Lois Eiser, the administratrix of his estate.

Jury selection in the trial began on July 24, and the trial commenced on July 28, with Judge Gary F. DiVito presiding. The trial concluded Aug. 12. Only two parties, B&W and British American Tobacco, remained as defendants when the sides rested.

"In order to prove their case, they had to show fraud on the part of B&W based on its advertising of Carltons," said Bruce Sheffler, partner at Chadbourne & Parke in New York, who represented B&W in the case. "But the advertisement that Carltons were 'lowest in tar' was truthful."

Sheffler said that there were no settlement offers made prior to trial.

George J. Badey III of Sheller, Ludwig & Badey in Philadelphia, counsel for the plaintiffs, said that his client had been aware of the dangers associated with smoking tobacco, but had been "trapped in the 'low-tar lie.'"

B&W's "lowest tar" advertising claims for Carltons were substantiated by a Federal Trade Commission test rating Carltons low in tar and nicotine. Badey said that, according to evidence offered at trial, several features of the Carltons allowed them to receive low FTC tar and nicotine ratings while still delivering normal doses of those byproducts to the average smoker. He said that an expert testified that additives manufactured into Carltons caused the brand's nicotine to freebase into vapor form, and that the vaporized nicotine escaped the notice of the FTC test. He also said that those additives, in part, contributed to increased tar levels in Carlton cigarettes.

"We were quite disturbed with many of the court's rulings in the case," Badey said. "We firmly believe numerous reversible errors occurred, and that, at a minimum, a new trial will be awarded."

Badey filed post-trial motions Monday outlining his client's grievances with a number of the court's rulings in the case.

He said that the court allowed the jury to consider the highest count relating to the defendants' allegedly misleading advertising of Carltons, fraud, but not two lesser related counts, negligent misrepresentation and 402B misrepresentation. Badey reasoned that since the highest fraud count was offered for consideration, the dismissal for consideration of the lesser two counts was puzzling.

In addition, Badey said, several witnesses central to his case were precluded by the court from testifying. That list included two medical experts, one of whom had contributed to past surgeon general's reports, who were to testify about the history of the relationship between smoking and health; and the former brand manager for Carlton cigarettes, who was to offer evidence of the brand's marketing strategies.

Also precluded were depositions from American Tobacco's former chief operating officer and former vice-president for scientific research, who were to testify that their former employer had failed to test ingredients and additives of Carlton cigarettes, Badey said.

And finally, Badey said, the court would not allow testimony from famed tobacco whistleblower Jeffrey Wigand, B&W's former vice-president of research and development, whose publicizing of B&W's medical research secrets was the subject of the 2000 film "The Insider."

Wigand, who was to appear as a rebuttal witness, was to offer testimony that Badey said would have impeached the testimony of previous defense witnesses.

But Badey took particular exception to the granting of a pretrial defense motion requesting that Lois Eiser's complete medical records, including her obstetric charts, be produced for the defense's perusal. That motion was granted by Judge Allan L. Tereshko. The defense argued that her medical records might have shown a warning from one of her physicians about smoking, thereby proving that William Eiser knew the risks related to tobacco use. Badey said that since William Eiser's knowledge of the risks of smoking was not at issue, the motion was egregious.

Tereshko ultimately modified his order to include Lois Eiser's medical records from only the age of 18 and up.

Badey is hopeful that the Eisers' case has not ended with the trial jury's verdict.

"While the tobacco companies prevailed at this trial," Badey said, "we are hopeful that a Common Pleas Court en banc panel -- or ultimately the Superior Court or Supreme Court -- will see fit to grant the appropriate relief so that the defendants will be held responsible for their actions."


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::: posted by Creditwrench at 5:14 PM

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