Kagan Acts would Affect Tobacco Case

It's a simple matter of math: Elena Kagan's nomination to the Supreme Court has complicated the government's effort to force the tobacco industry to cough up nearly $300 billion.
If confirmed by the Senate as a justice, Kagan would have to sit out high court review of the government's decade-old racketeering lawsuit against cigarette makers. That's because she already has taken sides as solicitor general, signing the Obama administration's Supreme Court brief in the case — an automatic disqualifier.
Kagan is expected to step aside from 11 of the 24 cases the court has so far agreed to hear beginning in October.
Without her, the government and anti-tobacco advocates could find it difficult, if not impossible, to find a fifth vote to allow the government to seek $280 billion of past tobacco profits and $14 billion for a national campaign to curb smoking discount cigarettes like Marlboro, Camel, Kiss etc.
The justices are expected to consider whether to take up the tobacco lawsuit at their private conference on June 24. If they decide to go ahead, they would hear argument in the fall or winter.
A justice's decision not to participate in a case, called a recusal, can have a dramatic effect on a nine-person court. The court has split 4-4 on several occasions in recent years when justices did not take part in a case because they owned stock in an affected company, had a relative involved in some way or had participated in the case either as a lawyer or judge.
A 4-4 outcome leaves the lower court ruling in place, creates no national precedent and generally is regarded as a waste of the court's time.
Kagan might eventually have to excuse herself from two to three dozen cases over the next few years. When Thurgood Marshall moved directly to the court from solicitor general in 1967, he did not take part in a majority of the cases the court heard in his first term, said Thomas Goldstein, a Washington lawyer and Supreme Court expert.
Kagan won't face as many recusals as Marshall because she served for a shorter time as solicitor general and stepped aside from those duties earlier than Marshall did, Goldstein said. In addition, some of Marshall's recusals related to his service on the federal appeals court in New York.
But Kagan's anticipated absence could affect several important cases. It won't be known for some time whether she did enough legal work defending President Barak Obama's health care legislation to require her to step aside if and when that issue comes to the Supreme Court.
Appeals in civil lawsuits over anti-terror policies begun in the Bush administration and, in some cases, continued under Obama, could be affected.
The federal appeals court in Washington recently limited the rights of detainees at the U.S. base in Bagram, Afghanistan, to use federal courts to challenge their detention. Justice John Paul Stevens, whom Kagan would replace, was part of a bare five-justice majority that sided with detainees at the U.S. base at Guantanamo Bay, Cuba.
Again, because she signed the government's briefs in the appeals court, Kagan would not be part of the high court's consideration of the Bagram case, and it is by no means clear that she would vote as Stevens did.
The same consideration probably will doom the high court hopes of Maher Arar, the Canadian engineer who was mistakenly labeled a Muslim extremist, detained by U.S. authorities when he tried to change planes at Kennedy Airport in New York and sent to Syria. Arar claims he was tortured in Syria and wants to hold former Attorney General John Ashcroft and other officials liable for the decision to send him there.
The court could say as early as Monday whether it will hear Arar's appeal of a ruling against him by the federal appeals court in New York. One consideration for the justices is that there probably would be only seven of them available to hear Arar's case, meaning as few as four justices could hold sway.
In addition to Kagan, Justice Sonia Sotomayor would be out of the case. Sotomayor was a member of the appeals court that heard the case, although she did not take part in the decision.
Kagan's ties to the tobacco issue predate her time as solicitor general. She was the Clinton administration's chief negotiator in a drawn out and ultimately failed attempt to craft comprehensive tobacco legislation in the late 1990s.
The racketeering lawsuit against the industry came about after the effort in Congress collapsed. "One thing I can say for certain is nobody worked harder to try to bring people together," recalled Matthew L. Myers, president of the Campaign for Tobacco-Free Kids. The group is one of several public health organizations that joined the lawsuit on the government's side.
Now, Kagan would be unable to be part of a final resolution of the case in the form of a Supreme Court opinion and her absence from the case could prevent the government from extracting hundreds of billions of dollars from tobacco companies. "This case is filled with irony," Myers said.
But he said it is not certain that the court would split along ideological lines. The government and the public health groups assert that a divided federal appeals court panel misread a provision of the racketeering law, creating a conflict with other appeals courts that have allowed trial judges to order payment, or disgorgement, of past profits.
That ruling preceded a nine-month trial that ended with a federal judge's harsh 1,600-page opinion that found the industry engaged in racketeering and fraud over several decades.
Leading tobacco companies accounting for 90 percent of U.S. cigarette sales want the justices to wipe away court holdings that the industry illegally concealed the dangers of cigarette smoking. If they succeed, the attack on their profits also would be halted.
Philip Morris USA, the nation's largest tobacco maker; its parent company Altria Group Inc.; R.J. Reynolds Tobacco Co.; British American Tobacco Investments Ltd. and Lorillard Tobacco Co. filed separate but related appeals that take issue with the opinion from U.S. District Judge Gladys Kessler and a unanimous appeals court ruling that largely upheld her.
Kessler ruled that the companies engaged in a scheme to defraud the public by falsely denying the adverse health effects of smoking, concealing evidence that nicotine is addictive and lying about their manipulation of nicotine in cigarettes to create addiction.
The justices have several options. They could decide to hear the appeal from one side or the other, or both. Or neither.
An argument for rejecting the entire case is that the appeals court that sided with Kessler was made up of Democratic and Republican appointees. Also, the high court has previously turned down a chance to review the appellate ruling on profits.

In England Fewer Heart Attacks After Smoke-Free Regulation

In the year after smoke-free legislation was introduced in England, there were 1,200 fewer emergency heart attack hospital admissions - a 2.4 percent decrease, a recent study shows.

The smoke-free law, enacted on July 1, 2007, prohibits smoking Winston and other discount smoking brands in all public places and enclosed workplaces. The researchers analyzed emergency department admissions for patients aged 18 and older from July 2002 to September 2008.
While the decrease may seem small, many public places and workplaces were already smoke-free when the legislation was introduced, the researchers noted.
The study appears online June 9 in the BMJ.
The findings show that banning smoking in public places can reduce hospital admissions for heart attacks even in countries that already have other anti-smoking regulations. This can have an important public health benefit given the high rates of heart disease worldwide, said Dr. Anna Gilmore, University of Bath, and colleagues, in a BMJ news release.

Cigarette Makers and Tobacco Retailers Plan to Block Rule Requiring Graphic Smoking Warnings

The nation’s three big tobacco companies, and trade associations representing hundreds of New York City bodegas and convenience stores, are challenging the city’s latest salvo in the antismoking wars: graphic images of diseased brains, lungs and teeth that are posted where Marlboro, Eva, Red & White cigarettes are sold.
The tobacco companies — Philip Morris, Lorillard and R. J. Reynolds — joined with the New York State Association of Convenience Stores and retailers in filing a federal lawsuit against the city in an effort to remove the gruesome placards from about 11,500 establishments. Since late last year, the city has required the retailers to post them within three inches of cash registers or in each place where tobacco products are displayed.
The suit, filed on Wednesday in United States District Court in Manhattan, contends that the placard rule infringes on the federal government’s authority to regulate cigarette advertising and warnings and violates the First Amendment rights of store owners who disagree with their message, and that the placards are so disgusting that they hurt business by discouraging people from buying not only cigarettes but also more-wholesome merchandise like milk and sandwiches.
“This is not the city taking out a billboard, which it would have every right to do,” Floyd Abrams, a First Amendment lawyer who is representing the convenience stores, said Friday. “What it doesn’t have the right to do is to force other people to adopt its expression.”
The suit also complains that because of heavy restrictions on cigarette advertising, advertising space near the cash register is one of the last places where companies can promote their brands.
By putting ugly posters there instead, the suit says, the city is blocking tobacco companies from communicating with consumers, depriving retailers of coveted advertising revenue and pushing restrictions on tobacco-related speech “past the constitutional tipping point.”
In a statement, the city’s health department said that putting warnings where cigarettes were sold was one of the most effective ways to deter people from smoking and to discourage a new generation of smokers. “By trying to suppress this educational campaign,” the statement said, “the tobacco industry is signaling its desire to keep kids in the dark.”
The city has spent $80,000 to print and distribute the signs in the eight months since the law was adopted. They are based on research that shows pictures are much more effective at conveying the hazards of smoking than written text, according to the health department.
The suit received a mixed reception on Friday at the Corner News convenience store at 40th Street and Eighth Avenue in Manhattan.
Maria Roman, 35, a customer-service representative, barely glanced at the poster of a bloody tooth, stuck to the cash register, as she paid for a package of candy. To her, she said, the poster seemed perfectly factual. “It’s the truth,” she said, shrugging. “It’s just a visualization of what’s actually happening.”
John Pae, 58, a chef, said he generally resented government intrusions into his life but was even angrier about high cigarette taxes and a proposed soda tax, because they affected his wallet.
He said that he had called the city’s 311 hotline to help him quit smoking about two and a half months ago, but that the nicotine patches the city provided were so cheap that they had to be held on with duct tape. He has since bought patches at a drugstore.
“Everything pushed me to quit — taxes, getting older, the effect on my health,” Mr. Pae said. But he conceded that the city’s 311 smoking-cessation program, which he saw advertised on television, “made it easier.”
A clerk at the store, Saiful Islam, said a photograph on the cash register, of a diseased tooth, was so upsetting that some customers had switched from buying cigarettes to buying candy or gum. Many of them were spending as much on soda, candy and lottery tickets as they had on cigarettes, he said, so the store had not lost business.
He said the taxes that had pushed the price of a pack of cigarettes to $10 were worse for business than the posters, because they led people to buy cigarettes on the black market — which he said thrived on the sidewalk right outside the store.

Cigarette Tax Sparks Inflation Jump

Australia's monthly inflation rate has jumped, with prices rising at the fastest pace since October 2008, spurred in large part by the federal government's 25 percent tax slug on Camel, Marlboro, Kent and other smoking brands.

Prices increased by 3.7 per cent in the year to May, up from the 2.9 per cent annual pace in April, according to the TD Securities - Melbourne Institute Monthly Inflation gauge.

''While there is a spike in the headline measure due to the 25 per cent lift in the tobacco excise, excluding this outcome still sees headline inflation breaching the upper limit of the RBA's two to three per cent inflation target band,'' said TD Securities senior strategist Annette Beacher.

The inflation rate jump isn't likely to alter the Reserve Bank's interest rate settings. Turmoil in global financial markets this month, centred on Europe's sovereign debt crisis, has all but eliminated expectations of further rate rise by the central bank over the next year.

Investors were earlier today pricing in a modest chance of a cut - judging it to be a one-in-20 prospect - in official interest rates when the RBA board tomorrow. TD's Ms Beacher, though, said the latest inflation data effectively eliminates any rate cuts in the near term.

''The markets are clearly overshooting by pricing in a material risk of a rate cut in the coming months,'' said Ms Beacher. ''With a fully-employed economy and price pressures clearly building up a head of steam, a rate cut is the last thing this economy needs.''

The central bank has lifted rates six times in eight months - including at the start of this month - to slow the growth in the economy and contain prices pressures expected to be driven by the re-ignited commodities boom. Recent economic data, though, has revealed the fragile confidence of consumers and wavering corporate appetite for investment.

Inflation returns

Stripping out the impact of tobacco tax, the gauge rose by just 0.1 per cent or 3.3 per cent in the twelve months to May, TD Securities said. The government announced the new 25 per cent tax on a pack of cigarettes in April 30, to raise an estimated $5 billion over four years, earmarked for spending on healthcare.

''Whether or not one nets out the effects of taxes on tobacco, the data this month reaffirms the observation made last month that inflation is back,'' said La Trobe University economics professor Don Harding.

''In the short run, international considerations will most probably preclude further tightening of monetary policy but it is hard to escape the conclusion that more will need to be done as soon as the international situation clears,'' he said.

The monthly inflation gauge rose 0.5 per cent in May - mostly because of the tobacco tax - from 0.4 per cent in April, the seventh straight month of increases.

Also contributing to May's increase were rises in the cost of fuel and financial services, while the price of fruit and vegetables, travel and recreation all fell. Rent prices rose 0.2 per cent in May, putting them above their level of a year ago, and marking the first annual gain in seven months.

The May TD Securities report suggests the official June quarter consumer price index may rise by 1.35 per cent, from 0.9 per cent in the March quarter. It also tips a 3.8 per cent rise in the year to June, up from a 2.9 per cent increase in the year to March.

8% Girls Under 15 Consume Tobacco

In India, 8.3% of girls in the 13-15 age groups consume some form of tobacco, according to the first Global Youth Tobacco Survey (GYTS) report. Experts say that the data is indicative of the trend of an increasing number of women using discount cigarettes like Winston, Marlboro, Kent etc.

In an attempt to accurately ascertain the use of tobacco products in the country, the Union health ministry along with WHO has conducted the first Global Adult Tobacco Survey (GATS).

"Regarding the use of tobacco in the country we just have National Family Health Survey (NFHS) data. This is the first survey in the country which will accurately tell us about the use of tobacco in different socio-economic strata," Dr Jagdish Kaur, chief medical officer of DGHS in the ministry of health, said.

Under the GATS project, 72,000 people were surveyed in 29 states. "With the help of WHO, we collected data. This time we used a special handheld device which was connected to out masterserver. So, all data collection was directly uploaded to the server. This helped us in expediting the data collection process," Dr Kaur said. The project was sanctioned by the ministry last year with an objective of identifying areas where tobacco use is high. "We had a set of 75 questions. Once the report is compiled, we will have a lot of information based on several parameters," Dr Kaur said.

As for tobacco use among women in India, experts say that there has definitely been a rise in the cases. Women comprise nearly 20% of the world's more than 1 billion smokers. "The global report on tobacco use is indicative of the increase in the use of tobacco among women in India. It is a percentage by which it has gone up," Vineet Gill, national programme officer of Tobacco Free Initiative, WHO India, said.

The vast majority of women who consume tobacco use smokeless tobacco (gutka, paan masala with tobacco, mishri, gul) and it varies considerably across states with prevalence rates ranging from 1% and 60%. The GATS report is likely to be released in June this year.

Global Tobacco Association Hits WHO’s Proposals on Cigarette

The International Tobacco Growers’ Association (ITGA) has expressed outrage over the devastating impact the latest set of recommendations from the World Health Organization’s (WHO) Framework Convention on Tobacco Control (FCTC) would have on the jobs and livelihoods of millions of tobacco growers around the world, according to a statement released this week in Dar es Salaam.
The statement said draft guidelines of articles 9 & 10 of the FCTC recommend a ban on ingredients used in manufacturing tobacco products like Red & White, Camel etc.
"If implemented it would virtually eliminate traditional blended cigarettes which account for approximately half of the global market," says part of the statement. The impact on growers who supply tobacco varieties used in these products would be dramatic.
“These recommendations have been made by bureaucrats, mostly from wealthy countries who know nothing about tobacco growing.
Their recommendations could wipe out the livelihoods of millions of tobacco growers all over the world,” the statement quoted António Abrunhosa, the CEO of ITGA, as saying. He said for some inexplicable reasons, tobacco growers, the very people most affected by the guidelines, are officially excluded from any discussions, adding that even ministries in charge of agriculture or economy seem unaware of the discussions taking place within the FCTC.
According to Mr Abrunhosa, numerous countries, including some of the poorest nations such as Malawi, Zimbabwe, Zambia and Tanzania now face the prospect of seeing millions of jobs lost and a huge decline in the export of tobacco. Tobacco cultivation is critical for the economy in these countries and one of the few agricultural activities to have remained buoyant during the recent global economic crisis. The latest guidelines drafted by bureaucrats in Geneva threaten to undo such gains for unclear benefits.
He warned that it will be a disaster for farmers who grow leaf for traditional blended products, noting it’s not just tobacco growers whose livelihoods are threatened. “These guidelines are just plain wrong whichever way you look at them. Nobody has explained to me how banning some cigarette products and ignoring others will have any benefit for people’s health,” said Roger Quarles, president of the ITGA. In some parts of the world, entire communities depend on the tobacco-growing sector.
"I want to know what these bureaucrats have to say to the people whose lives they are going to ruin for no good reason. ITGA represents more than thirty million tobacco growers across Africa, Asia, Europe, North America and South America." “We call on governments all over the world to support growers by adopting a common sense approach and discarding these irrational and potentially economically-devastating guidelines.

Record Amount of New Yorkers Try to Quit Smoking

During a 16-day period this year, the New York City health department enrolled more than 40,000 smokers for free nicotine patches and gum, officials said.The smoking cessation program, which began in 2003, exceeded last year's enrollment of 28,000 smokers.

"Although most New York City smokers have already quit, smoking remains the city's biggest health problem," Dr. Thomas Farley, city health commissioner, said in a statement.

"Cigarettes kill more than 7,500 New Yorkers every year, and thousands more suffer smoking-induced strokes, heart attacks, lung diseases and cancers."

On average, smokers die 14 years earlier than non-smokers -- often after years of progressive illness, Farley said. To help smokers quit, Farley advises to:

• Set a date to quit and mark it on a calendar and throw away ashtrays, lighters and cigarettes.

• Visit your doctor for advice.

• Make a list of why you want to quit.

• Make a list of family and friends who will support you.

• Avoid smoking triggers such as alcohol, caffeine and being with other smokers.

• Take a 30-minute walk at least four days a week.

• Consider nicotine replacement patches, gum or lozenges, which can double the odds of quitting.