Sharon Eubanks, JD, is a private practice attorney in Washington, D.C. In the last six years of her 22 years as an attorney with the U.S. Justice Department, she led the team that pursued the case against major cigarette manufacturers for violating the racketeering act.
With co-author and APHA member Stanton Glantz, PhD, Eubanks brings readers behind the scenes of that lawsuit in “Bad Acts: The Racketeering Case Against the Tobacco Industry,” newly published by APHA Press. Here she talks with Public Health Newswire about the case, attacks from the industry and lessons learned for the public health community.
Q: In the story of the landmark tobacco case, you give much credit to states for getting the legal ball rolling by suing tobacco companies to recover Medicaid costs spent to treat ill smokers. Doesn’t this point to the need for activism at all levels of government, whether in tobacco litigation, health reform or other issues?
Absolutely. People should care about their government, and they should be encouraged to participate in it if “of the people, by the people and for the people” is to have any real meaning. Activism is extremely important, and it is a necessary element to raise public awareness and to expedite change. That said, while activism can educate and change people’s minds, litigation certainly is a powerful vehicle for change itself.
I’m not advocating “judicial activism,” as that phrase has been used to refer to judges intent upon reaching a certain result; rather, judges are bound to follow the law, and we have every right to expect that of them. Federal judges are given life tenure on the bench, and thus can act without fear of reprisal — no amount of lobbying can oust them from the bench. If the existing law dictates a change, through litigation, that can and should be accomplished. Litigation, however, is costly.
Advocates at all levels and of a diversity of backgrounds are necessary to bring awareness to effectuate change in laws and policies. Lawyers need non-lawyer advocates and vice-versa.
Q: You tell a compelling story in the book’s prologue of how the tobacco case impacted your career because “taking on the tobacco industry is a bad career move in this town, Washington, D.C., where the industry’s money flows like water.” Is this still true today?
Sadly, this hasn’t changed — tobacco money still buys a lot of influence in D.C. and elsewhere. Just last year, my attempt to file an amicus brief in an appellate case against tobacco industry allies was met by their lawyers — lawyers who represent the tobacco industry — with opposition directed personally at me. As the industry put the issue, they had no problem with the amicus brief being filed; their only problem was with the lawyer filing it, and that would be me. Nobody ever said that career suicide was going to be painless.
Q: Can you talk about the importance of science, such as the 1964 Surgeon General’s report on smoking and health, in this legal battle?
The United States’ case was absolutely driven by the science. It was necessary to focus on the available scientific information in order to demonstrate, that is to prove, the fraud that the defendant tobacco companies had perpetrated upon the public. The claims of the industry that there was no causal link between smoking and health, that cigarette smoking was not addictive, that low-tar cigarettes were healthier than “full-flavored” brands, that they didn’t market their deadly product to children, that second-hand smoke did not cause disease — all of these issues were related to scientific research and findings, particularly of independent scientists, such as those scientific editors and contributors to the U.S. Surgeons General reports over the years.
Alerting the nation to the health risks of smoking, the 1964 Surgeon General’s Report concluded that cigarette smoking caused lung cancer. Following the 1964 report, the issue tilted from one of public “choice” to smoke to one of public health. It was science, particularly epidemiology, that made this possible. Social science and psychology similarly played an important role in demonstrating at trial that the industry marketed cigarettes to underage youth.
Q: The book’s chapter titles are so engaging: “Should We Sue the Lawyers?” “Off to the Races” and “The Special Monster” to name a few. How difficult was it to distill this entire case into a readable story?
Thank you so much. I am so pleased that you found it engaging and readable! Without the help of my friend and co-author Stan Glantz, it would not be so. Stan yelled at me a lot for using legalese, and I still twitch to this day whenever I use certain legal phrases in my work, or even the word “certain,” which Stan says I use too much.
I wasn’t part of that settlement, and I recognize that like any settlement, it represented a compromise. Viewing it in hindsight, I wish that the settlement had required that a specific and meaningful amount of funds be set aside and used in each state to address tobacco and health issues, educating the public and helping people quit.
Q: What can the public health community do to keep the industry’s feet to the fire, so to speak?
Keep reminding everybody that the industry is comprised of racketeers. Don’t take my word for it — that’s what an independent federal judge found after a nine-month trial. Keep those findings of fact from the district court handy to prevent recent history from repeating itself.
“Bad Acts: The Racketeeting Case Against the Tobacco Industry,” by Sharon Eubanks and Stanton Glantz, is available from APHA Press.