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U-Turn on Tobacco?

Last June, the Bush Justice Department appeared ready to quietly settle the federal government's lawsuit against the tobacco industry.

Now the same Justice Department seems poised to pursue the case with a zeal that would have made its Clinton predecessors (who launched the suit) proud.

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That's certainly the implication of a list of demands the department would seek to impose if it won its case, which focuses on fraud and conspiracy charges against cigarettemakers. The list was given recently to lawyers for the tobacco companies in an exchange of information.

Its very tough remedies include: restricting all cigarette ads to a black and white format, with half the space given to health warnings; no more vending-machine sales; no more payments to retailers to prominently display cigarette brands; disclosure of all ingredients, including toxic chemicals; no use of words like "low tar" or "mild" in promotion materials.

The list also includes a ban on promotional giveaways of cigarettes. That subject takes on added interest with a study just released by antitobacco groups tracing industry efforts to promote smoking among Hollywood filmmakers and actors. Cartons of cigarettes were freely distributed. The goal, of course, was on-screen smoking by film idols in hopes that audiences, especially the young, would follow their example, too.

The Justice Department's new demands are stricter than many provisions in the 1998 settlement between the industry and state governments. These measures are closer to some steps favored by the Food and Drug Administration before the Supreme Court ruled two years ago that the agency's antitobacco campaign overstepped its authority.

Indeed, the industry is hoping that the courts will frown on the Justice Department's demands as impinging on First Amendment rights – so-called commercial speech – and on decisionmaking authority that should belong to Congress.

Time will tell whether those legal arguments prevail over the government's prerogative to take steps that protect the public health and welfare.

Meanwhile, let's hope that the Justice Department demands do, in fact, represent a turnaround. More money has been devoted to the tobacco lawsuit in the attorney general's latest budget, a sign the department is confident it has a strong case.

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If the department is allowed to keep at it (the trial is scheduled for June 2003), it will put government on the right side of efforts to curb an addictive drug, and show that big campaign contributions – which tobacco companies are famous for – don't necessarily mean you "get off easy."