The Cigarette Confessional

I’d rather be a Catholic than a cigarette company. Confessions are done in private, and priests (and God) are more forgiving of past transgressions than the Justice Department (and judges.) As Catholic On-Line explains it, “The basic requirement for a good Confession is to have the intention of returning to God like the “prodigal son” and to acknowledge our sins with true sorrow before the priest.”

Once a Catholic has confessed to a specific sin in the privacy of the Confessional, the appropriate punishment is imposed by the priest and the penitent can go on about his/her business confident that the transgression has been forgiven. The Pope’s confessional is a kind of one stop shopping for forgiveness whereas the legal confessional, at least as interpreted by Judge Gladys Kessler of the U.S. District Court for the District of Columbia, more closely resembles Hawthorne’s Scarlet Letter.

In 2006 Judge Kessler issued a final judgment in a civil RICO (Racketeering) case that the Department of Justice brought against the tobacco industry as a whole. She said tobacco companies violated civil racketeering laws and defrauded the American people by lying for decades about the health risks of smoking and their marketing to children. In her 1682 page opinion she said that:

“the Court will order Defendants to make corrective statements about addiction (that both nicotine and cigarette smoking are addictive); the adverse health effects of smoking (all the diseases which smoking has been proven to cause); the adverse health effects of exposure to ETS [environmental tobacco smoke] (all the diseases which exposure to ETS has been proven to cause); their manipulation of physical and chemical design of cigarettes (that Defendants do manipulate design of cigarettes in order to enhance the delivery of nicotine); and light and low tar cigarettes (that they are no less hazardous than full-flavor cigarettes). Within sixty days of the issuance of this opinion and order, both parties will submit a proposal for the exact wording of these statements. After the Court approves particular statements, Defendants must publish such corrective statements in newspapers and disseminate them through television, Within sixty days of the issuance of this opinion and order, both parties will submit a proposal for the exact wording of these statements.”

All the appeals have now been exhausted, Judge Kessler’s opinion is final and the Justice Department has come up with proposed language that has been made public over the tobacco companies’ objections.

Some of the Justice Department proposals as to what the cigarette companies must say in their ads and on cigarette packages are in the nature of a confession that might be heard by a priest in a confessional. One suggested confession says: “We falsely marketed low tar and light cigarettes as less harmful than regular cigarettes to keep people smoking and sustain our profits. We knew that many smokers switch to low tar and light cigarettes rather than quitting because they believe low tar and lights are less harmful. They are NOT.” Another says: “We told Congress under oath that we believed nicotine is not addictive. We told you that smoking is not an addiction and all it takes to quit is will power. Here’s the truth: Smoking is very addictive. And it’s not easy to quit.”

Not all the suggestions are in the nature of confessions. Some simply describe the hazards posed by the cigarette. One, for example, says: “A federal court is requiring tobacco companies to tell the truth about cigarette smoking. Here’s the truth: . . . Smoking kills 1,200 Americans. Every day.”

Another says: “Just because lights and low tar cigarettes feel smoother, that doesn’t mean they are any better for you. Light cigarettes can deliver the same amounts of tar and nicotine as regular cigarettes.”

Another says: “For decades, we denied that we controlled the level of nicotine delivered in cigarettes. Here’s the truth: Cigarettes are a finely-tuned nicotine delivery device designed to addict people; We control nicotine delivery to create and sustain smokers’ addiction, because that’s how we keep customers coming back; We also add chemicals, such as ammonia, to enhance the impact of nicotine and make cigarettes taste less harsh; When you smoke, the nicotine actually changes the brain-that’s why quitting is so hard; . . . .”

This last statement is so detailed that it is probably similar to what a murderer might come up with when confessing sins in a Confessional.

March 3 will have been an exciting day. That was the deadline for the tobacco companies to respond to the language proposed by the Justice Department. It is not often the sinner has a chance to weigh in on the kind of punishment that is appropriate. Priests do not ask confessors how many Hail Marys they think are appropriate for the sins to which they’ve confessed. My guess is Judge Kessler, like a priest, will not give the sinners’ suggestions much weight.

CHRISTOPHER BRAUCHLI is a lawyer living in Boulder, Colorado. He can be e-mailed at brauchli.56@post.harvard.edu.


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