Tobacco Company Files Suit To Enforce Federal Court Ruling

By Norman E. Kjono, October 30, 2006

I found your article in the Seattle Post-Intelligencer, "Tobacco Company Fights Cigarette Curbs," to be quite interesting.
 
My initial response was to question why the headline for your article did not - more accurately - read "Tobacco Company Files Suit to Enforce Federal Court Ruling." Are we citizens to believe that the Seattle-King County Department of Public Health, and other state health departments, have unlimited license to ignore previous rulings of our federal courts and that companies that lawfully manufacture legal tobacco products have no legitimate legal recourse?
 
I also read the statement by Mayor Nickel's spokesperson, Marty McOmber, with tongue firmly in cheek:
 
"It appears to be the tobacco industry once again trying to use its legal muscle to try to undermine some common sense public health regulations in this city and county."
 
As I read the above quote from Mr. McOmber the following information from the referenced Robert Wood Johnson Foundation documents came to mind:

Robert Wood Johnson Foundation, SmokeLess States Project
"Major Accomplishments and Highlights By State"
1994-2000: http://www.smokelessstates.org/downloads/SLS_table_94_00.pdf
2001-2004: http://www.smokelessstates.org/downloads/SLS_table_01_04.pdf
 
1994-2000

• Allocated $100 million of the first $323 million the state receives in settlement payments, to tobacco prevention programs
Increased tobacco excise tax $.48 a pack to $.82.5 (1994)
• Four-day "Camp Speak Out"  funded in partnership with ACS, train kids as advocates
• Slogan: "Tobacco Prevention Works"
• No statewide coalition, but through the SmokeLess States grant lead agency Washington DOC funded five rural community and ethnic specific groups

2001-2004

Supported passage of amendments to the Washington State CIA Act
• Commissioned legal opinion regarding status of state preemption in Washington State
• Supported passage of Tacoma-Pierce County Board of Health Resolution 200333527
• Supported continuing litigation and defense of Smoke Free Pierce County through seeking of litigation support funds and technical assistance

• "Secondhand Smoke Kills" API cable TV Puget Sound Region (Korean, Tagalng, Mandarin, Vietnamese)
• "It's Your Right" (Statewide TV coverage and Central WA Spanish language TV)
• "Gift of Clean Air" legislative kick-off (earned)
• Sponsoring members ACS, AHA, ALAW, WAIPIPASA. Endorsing organizations total over 30 organizations with statewide representation and a diverse population and interest groups
 
Underlines in the above "Accomplishments" were added by me for emphasis. You may recall that the 2003­2004 smoking ban in Pierce County was overturned as violating state law by our state superior, appeals and supreme courts. Are we citizens to believe that the Robert Wood Johnson Foundation has an unfettered right to apply millions of dollars of its legal and political muscle to pass and defend unlawful regulations and punitive taxes that support selling "Smoke Free" nicotine delivery device products, but companies that sell other nicotine delivery devices have no legal rights whatsoever?
 
Perhaps the Seattle-King County Department of Public Health merely has an aversion to competition. Consider the statement about rights earlier this year by the department's Roger Valdez:

Seattle Weekly, February 1, 2006
Roger Valdez Letter to the Editor, "Try the Patch"
 
            "We have compassion for smokers battling a powerful addiction . . . Affordable treatment is key: We offer a free nicotine patch program, and we are advocating for important changes in the law to mandate smoking cessation treatment on demand for those with health insurance and offer support for those with no coverage."
 
Let's get this straight, just to be sure we understand the subject. The King County health department has every right to distribute free samples of nicotine delivery devices of which it approves, but other nicotine delivery device manufacturers are to be prohibited from doing so? Such twisted logic is particularly onerous in light of Director Alonzo Plough's apparent belief that their preferred nicotine delivery devices should be prescribed for children (see page 1, left panel of King County Health NRT Advocacy attached).
 
Most troubling of all, however, is that your article appears to parrot and support the beliefs about the rights of some citizens versus the rights of others as also expressed by Mr. Valdez:

Seattle Weekly, January 18, 2006
 "Big Nanny Is Watching You," By Philip Dowdy
Quoting Roger Valdez, Director of Tobacco Prevention, Concerning I-901
Seattle-King County Department of Public Health

             "Americans think they have a lot of rights they really don't have. Smoking is one of those things where people think they have a right to smoke, but you don't. . . . You have no right to smoke. It's an addiction. It's something you should see a doctor about. . . . The condo association can ban it, and you have no legal recourse."
 
Well, have at it, knock yourself out. However, the folly of doing so is explained in my recent press release about California's Proposition 86, which would add $2.60 per pack in new cigarette taxes. As I said in a soon-to-be-published article for an attorney's newspaper in California, ". . . those who can be baited by intolerance to charge their neighbor for benefits they enjoy can also be readily switched to enacting multi-billion-dollar costs for themselves."
 
Since when were county health departments given authority to determine, mandate and enforce the legal or Constitutional rights of any citizen? Of equal importance, how is it that news reporters, such as, yourself apparently accept at face value political interpretations of Constitution and law by health activist laypersons, while ignoring the import of published decisions by a federal court judge?
 
I respectfully recommend a primer in constitutional law. You may want to begin by looking at the subjects of equal protection of the law, prohibitions against special privileges and immunities, and Washington's constitutional mandate for uniform taxation. When you have done so I trust that we may observe considerably less spin in how the PI reports news about tobacco issues. Media puffery is a poor substitute Constitutional substance.
 
Finally, I request that you not even think about labeling this E-Mail as a message from a "Front for Tobacco." Not only am I not compensated or employed by any tobacco company but my research and writing is supported solely by my personal income and resources. As to my views about some tobacco companies you may find the facts in the one page summary attached, Philip Morris & Tobacco Control, to be of interest.
 
How could one who reports that tobacco control aggressively advocates public policy that directly benefits the biggest of Big Tobacco possibly be a "Front" for the same entity? Accordingly, I would profoundly enjoy reading an investigative report in the Post-Intelligencer about how tobacco control advocacy for new cigarette taxes artificially inflates the price to be charged to consumers for Philip Morris' Aria nicotine inhaler and how the company's published support of smoking bans clearly supports that market for its "Smoke Free" nicotine delivery device.
 
In closing, I mention that it will be entertaining to observe how the news media will further spin copy below the following prospective headline:

"King County Health Promotes Philip Morris Nicotine Products By Eliminating Them"

 "King County health announced today a new program to advance Philip Morris' nicotine distribution interests by demanding restrictions on some of the company's delivery device products. Department tobacco czar Roger Valdez said "Of course that makes sense. The last thing we would want is for all of the nicotine addicts in King County to be deprived of a deeply satisfying dose of 'clean' nicotine." Valdez continued, saying "People need to understand that we're the deciders. We've decided that Marlboro is out and Aria is in. Support eliminating state cigarette tax revenues! Get your "clean" nicotine here! . . ."
 
Best Always,
 
Norm Kjono


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