Appeals court considers overturning tobacco case

A federal appeals court appeared skeptical Tuesday that a landmark tobacco judgment could be supported under racketeering laws, questioning whether cigarette makers had conspired to hide the dangers of smoking and would continue deceiving the public.

During the three-hour oral argument, all three judges on the appeals panel queried whether the 2006 ruling by U.S. District Judge Gladys Kessler had fully laid out the evidence showing a group conspiracy as required under RICO, a law designed to combat organized crime.

Government attorneys seeking to convince the Court of Appeals for the D.C. Circuit to sign off on billions in financial penalties against the industry allowed that Kessler's 1,653-page ruling might not have spelled out the racketeering violations, or the remedies, as clearly as it should.

Chief Judge David Sentelle, a Reagan appointee, was critical of Kessler's finding that the tobacco industry had committed fraud by describing cigarettes as “light,” “mild,” or “low tar” and by suggesting they were safer than regular cigarettes.

Studies show such cigarettes are not safer because smokers tend to puff harder.

Still, cigarette makers were simply following a Federal Trade Commission rule that allowed them to make factual statements about tar and nicotine content based on a specialized test, he said.

“They are basically making factually correct statements,” Sentelle said.

A decision to uphold Kessler's landmark judgment could give plaintiffs fresh ammunition and spur new lawsuits by smokers and ex-smokers claiming they were fooled by deceptive marketing.