Tobacco Road

Tomorrow in federal district court in Washington, Judge Gladys Kessler is scheduled to begin hearing United States of America v. Philip Morris, Inc. et al. In the case, begun in 1999 by the Clinton administration, the federal government is suing the big tobacco companies in an effort to recover $280 billion - yes, billion - in health-care costs attributable to "lung cancer, heart disease, emphysema, and other tobacco-related illnesses" caused by the "fraudulent" conduct of the tobacco companies.

If you thought the legal issues involving the cigarette industry had all been settled in the $246 billion master settlement agreement reached in 1998 between the companies and the state attorneys general, it turns out you were wrong. The federal government wants its piece of the action, too. So the Justice Department, starting with Attorney General Reno but followed up aggressively by General Ashcroft, has stretched to make a federal case where there is none.

Signs of this are apparent all through the complaint. It is brought in part under the Racketeer Influenced and Corrupt Organizations act, a law passed in 1970 that was intended for use against gangsters, not businesses. The complaint, nevertheless, dwells on actions that took place in 1953, 1954, and 1964. The companies thus stand accused of violating a law that did not exist at the time they are alleged to have violated it.

Of what do the tobacco companies stand accused? According to the complaint, "The fundamental goal of the Enterprise and conspiracy was to preserve and expand the market for cigarettes and to maximize the Cigarette Companies' profits."

In other words, by the government's definition, it was illegal for these companies to maximize their profits. Yet had they failed to do so, they'd no doubt be facing shareholder lawsuits, some of them from the tobacco-stock-holding pension funds of the same state governments that sued the tobacco firms to recover health-care costs.

The complaint refers to the companies' "efforts to conceal from cigarette purchasers, and from the public in general, the addictive nature of cigarette smoking."

Yet as the tobacco companies point out in their court filings, it wasn't exactly a secret from the public that it is hard to stop smoking. The companies quote Christopher Columbus, one of the first Europeans to encounter tobacco in the New World, remarking of his own men, "it was not in their power to refrain from indulging in the habit."

The companies also note that they weren't the only ones who decades ago questioned whether addictive was the right word to describe smoking; a report in 1964 by the surgeon general, the top federal public health official, said smoking "should be characterized as an habituation rather than an addiction."

Most obnoxious is the Justice Department's idea that the tobacco companies, rather than the smokers or the federal government, should bear the entire cost of health care for smokers. Surely the smokers themselves bear some responsibility: There have been health warning labels on American cigarette packages since 1966.

And the federal government bears some responsibility: it could have banned cigarettes, but it did not. It did spend hundreds of millions of dollars over 70 years, beginning in 1930, on crop subsidies to tobacco growers. The federal government earned revenue from taxes on cigarettes, and it sold cartons of them at military post exchanges.

To bolster its case in United States of America v. Philip Morris, Inc. et al., the government has listed more than 200 witnesses and more than 20,000 exhibits. It has told the judge that it will take more than six months of trial just to mount its side of the case.

In his speech to the Republican National Convention in New York, President Bush spoke of the need to protect workers "from the explosion of frivolous lawsuits that threaten jobs across America." One way for Mr. Bush to protect workers from such lawsuits is by telling his Justice Department to drop this one.