broad powers that it would give the FDA, some tobacco control advocates oppose it because it would legitimize tobacco products and might deter the development and marketing of reduced-risk products.
Since the 1980s, tobacco companies have experimented with novel tobacco- and cigarette-like products designed to reduce the toxicity of smoking and the level of secondhand smoke emissions. These products have taken various forms over the years, including cigarette-like devices that heat rather than burn tobacco and, more recently, cigarettes with reduced carcinogen emissions. Harm reduction products, also referred to as PREPs (potential reduced-exposure products), are potentially beneficial, but there is not yet enough scientific evidence to determine their effectiveness in reducing harm from smoking (IOM 2001).
Companies have test marketed PREPs in recent years, but few have been introduced and few are marketed nationally. In 2005, Vermont, joined by several other states, sued the R.J. Reynolds company over the company’s claims that its Eclipse cigarette, which heats tobacco without actually burning it, might reduce the risk of cancer and other health problems (AP 2005).
Although congressional action on tobacco had been stalled since 2004 until recently, important litigation victories have continued to occur. In 2006, U.S. District Judge Gladys Kessler ruled in favor of the federal government in its massive RICO case against the tobacco companies alleging that they had engaged in misleading conduct for decades as part of a broad conspiracy (United States v. Philip Morris USA Inc., et al., 99-CV-2496, 2006). As noted above, Judge Kessler’s remedial order was limited to actions designed to prevent future violations of RICO because earlier rulings had precluded “backward-looking” remedies such as disgorgement of the profits made by the defendant cigarette manufacturers:
[T]he Court is enjoining Defendants from further use of deceptive brand descriptors which implicitly or explicitly convey to the smoker and potential smoker that they are less hazardous to health than full flavor cigarettes, including the popular descriptors “low tar,” “light,” “ultra light,” “mild,” and “natural.” The Court is also ordering Defendants to issue corrective statements in major newspapers, on the three leading television networks, on cigarette “onserts,” and in retail displays, regarding: (1) the adverse health effects of smoking; (2) the addictiveness of smoking and nicotine; (3) the lack of any significant health benefit from smoking “low tar,” “light,” “ultra light,” “mild,” and “natural” cigarettes; (4) Defendants’ manipulation of cigarette design and composition to ensure optimum nicotine delivery; and (5) the adverse health effects of exposure to secondhand smoke.
Judge Kessler’s RICO rulings regarding liability and remedy are now on appeal. In addition, findings similar to those made by Judge Kessler have