We know tobacco abuse is the #1 cause of preventable illness worldwide, particularly in America. We know that the only way to stop this epidemic is to force the tobacco industry to abide by restrictions, such as ensuring the cost of their product includes the health implications thereof. We know that the tobacco industry must be forced to accept such limitations, not withstanding its protestations to the contrary. We know that the tobacco industry's lobbyists are least able to affect the judiciary (rather than the legislative/executive branches of government). Thus, we must be able to employ litigation to discipline it.
The key phraseology in the MSA is intended to forestall the capacity to sue it. Merely hyperlinking through "naag.org" [National Association of Attorneys General] to the text of Exhibit T (near the end) will reveal the absence of the disclaimer ("to the power of the signatories") that otherwise exists in the MSA, proper, thus signaling legislative intent (in HB 445 in PA and, presumably, in each other state) to indemnify the tobacco industry in return for the windfall.
Such "stealth immunization" unambiguously threatens to undercut the debated phraseology that has been at the heart of my MSA challenge [paragraph ii (pp)], and it is difficult to believe this was an unintended result of this process. My testimony, in PA, has forestalled approval of this bill until the Supreme Court has ruled on the overall MSA challenge...but this bill is probably greased for adoption in most other states.
Thus, the only way to stop the tobacco industry from becoming immunized from future prosecution (recalling the phrase that it is indemnified for anything done in the normal course of business) is to amend the MSA. The only pending challenge to the MSA's nonseverable clauses is mine, I believe, inasmuch as everyone else is seeking a cut in the profits (or has been thrown out of other courts, as has been the fate recently - for example - of the Native American federal suit in San Francisco).
*
Therefore, I conclude that the ONLY way to stop the MSA is for me to gain standing to remand the entire matter, then to demonstrate its inherent unconstitutionality (remembering that NO COURT has YET studied its CONTENTS, for NO ONE has ever been able to attain STANDING so that this might occur). The next move would be to gain a national injunction against the proven-to-be onerous sections thereof.
THE PATH FOR THIS TO BE ACHIEVED HAS NOW, FORTUITOUSLY, BEEN PLACED BEFORE THE COURTS. The reason my MSA challenge has been perceived as "moot" by both the Philadelphia Court of Common Pleas and the Pennsylvania Commonwealth Court has been that, allegedly, I have not presented a legally enforceable interest based upon a case or controversy that was ripe for adjudication at this time; the Wawa billboard situation was termed "moot" because the billboards had been removed.
This argument--employed both by Philip Morris and by the PA Attorney General--now is empty, for (as predicted) the Wawa billboard advertising program has restarted.
Thus, working backwards, if the AG has "prosecutorial discretion" and
demonstrated that (lack of) power by refusing to pursue matters in April,
it seems apt that SOMEONE should be able to help him enforce a COURT ORDER
(not, merely, a "contract" as the MSA has been portrayed to be by the settling
parties). And many legal mechanisms could be
employed in the process (citizen/taxpayer/private-AG).
So, according to Judge Herron's Opinion of two weeks ago, the only "dispositive" issues are "standing" and "mootness." By reversing the latter, I attain the former. By attaining the former (i.e., empowered to enforce the MSA), the Supreme Court would be petitioned to acknowledge that the MSA could then be remanded due to a petition filed by someone (moi) who had demonstrated a legally enforceable interest in the results thereof; if I'm to be able to help enforce it, I should be able to influence its not-yet-approved contents.
*
This "three step proof" is, succintly, (1)--attaining standing to seek
enforcement of the not-yet-moot Wawa billboard advertising, from the Common
Pleas Court; (2)--attaining standing to seek amendment of the MSA, from
the PA
Supreme Court; and (3)--attaining a Federal injunction against the
sections of the MSA that indemnify the tobacco industry.
This appears to be a tall order, and yet it can be compartmentalized and sequenced. Anyone who has any useful suggestions is invited to provide them, asap.
As time goes on, key filings made in this matter will be uploaded to
Globalink,
the Tobacco Control site maintained in Geneva, Switzerland, by the International
Union Against Cancer (UICC), space kindly provided by Mr. Ruben J. Israel.
FEDERATION OF PHYSICIANS AND DENTISTS
TOBACCO LITIGATION - BASELINE DOCUMENTS
The two major efforts being promulgated against corporate medical practice
in PA (and elsewhere, conceptually) relate to
the provider-insurer relationship. The former is manifest as
physicians’ begin to attain collective bargaining rights; the latter is
manifest by the upcoming hearings to be conducted by the Insurance
Department due to its precipitous approval of the consolidation of PA Blue
Shield and Blue Cross of Western PA. The major effort to maximize
the potential of tobacco control activities is the ongoing challenge (both
in the PA Supreme Court and in the Philadelphia Court of Common Pleas)
to the humungous "Master Settlement Agreement" between Big Tobacco and
Big Government (Commonwealth of PA).
If you have comments or suggestions, email me at <rsklaroff@home.com>