Authors: Richard Kluger
Accordingly, he had become president of Massachusetts GASP and drafted the state’s first work-site smoking control statute for Newton, but, foreseeing an endless campaign to put across such measures in the state’s 350 other municipalities, Daynard sought a more telling way to combat the health problem. Given the tobacco industry’s record of fierce resistance to legislative action against it, he honed a strategy relying on the judicial branch of government, which seemed less susceptible to the companies’ infiltration. Johns-Manville, the giant of the asbestos industry, had been sued by 25,000 claimants and lately pushed into bankruptcy—an obvious model for the campaign Daynard was envisioning. Whatever their immediate financial results, similar suits against the cigarette companies were, according to TPLP’s statement of its mission, “the best way to force into the media and the public consciousness a strong emotional awareness of tobacco’s true degree of danger by focusing on the suffering of particular individuals, thereby helping to counteract the $2 billion spent annually … which promotes this catastrophic epidemic.” A court finding for even a single plaintiff victimized by smoking—and there had never
been one in American judicial history—was held likely to open the floodgates to thousands of similar actions.
Daynard was convinced he could carry off this campaign on the strength of three legal arguments. First, liability suits under state common law had not been preempted by either the 1965 or the 1970 federal cigarette labeling acts because neither had been conceived as a comprehensive piece of legislation “but as a minimal step”—the smallest that Congress could take and still pose as guardian of the public health. Congress’s labeling laws had merely prevented a myriad of such warning notices from being required by state and local jurisdictions, thus accommodating the industry in the conduct of its business. Second, the companies’ assumption-of-risk defense was fatally flawed by the addicting nature of cigarettes, which the industry did not warn against; indeed, it denied as much. Nicotine addiction made the use of cigarettes anything but a voluntary lifestyle preference, Daynard contended; smokers, rather, were captives of an industry that knowingly ensnared them, usually at an age when they lacked understanding of the possible deadly consequences of tobacco dependency. And third—and most pertinent, because the companies (a) had failed to warn their customers adequately before the warning labels had been mandated by Congress, and (b) had willfully acted since then to undermine the force of the warnings by denying or minimizing the scientific charges against smoking and continuing to advertise the pleasures of the custom—the industry at the very least shared responsibility for the physical damage that cigarettes inflicted. The risk of smoking, that is, ought to be assumed not solely by the buyers of so deviously marketed a product but by the makers as well, who were running a dirty business.
Fueled by a $30,000 annual grant from the Rockefeller Family Fund, the TPLP operated out of a cluttered office with a staff of six part-timers and a view of the Northeastern gymnasium. A self-proclaimed academy of instruction in the doctrine and execution of liability actions against the cigarette industry, Daynard and his crew acted as a referral service for litigators, aggrieved claimants, and public-health professionals, feeding them a stream of ideas and keeping them posted through the
Tobacco Products Litigation Reporter
, a periodic compendium of the latest legal opinions and rulings, complaints, briefs, statutes, theories, and book reviews relating to smoking, health, and the law. Daynard prosecuted no cases personally, but made himself available gratis to any member of the trial lawyers’ bar pursuing the tobacco merchants.
By the late ’Eighties, more than 150 suits had been filed against the industry, whose lawyers were scurrying around courthouses everywhere to keep the liability dike from bursting open. Daynard served as the plaintiff lawyers’ tactician, cheerleader, publicist, and cross-pollinator, trying to get the attorneys, invariably working on a contingency basis (no fee but a hefty piece, up to onethird,
of any award for damages), to share costs, intelligence, and documents by way of combating the millions the companies were spending on whole phalanxes of lawyers to stymie litigants. All this action drew the admiration of Ralph Nader, who had felt there was not much his own group could do to protect smokers beyond the warning labels. “We gave up too soon,” Nader remarked in saluting Daynard’s challenge to the industry’s assumption-of-risk defense by claiming the shared responsibility of both seller and buyer. Despite many setbacks, Daynard would keep doggedly after his prey and cost them millions in defense outlays.
VIII
IN
downtown Boston, not far from Daynard’s lair, a young state public-health officer was giving fits to a fast-growing sector of the tobacco industry that had until then attracted little attention from the antismoking movement, largely because it emitted no smoke and seemed relatively benign.
At the beginning of the twentieth century, smokeless tobacco, usually taken as a chew held cudlike in the cheek or as a dip of moist, sweetened, finer-grained snuff placed between the front of the bottom teeth and the interior of the lower lip, was the most popular form of tobacco consumption in America. Tobacco-drenched saliva, the principal by-product, had made spitting (and spittoons) a gross national institution until the practice in public was outlawed as a health menace; cigarettes were then seen as a safer, and less unsightly, alternative. By the last quarter of the century, though, the situation was reversed. In the early 1980s, smokeless tobacco was being used by an estimated 10 to 12 million Americans, one-third of them under the age of twenty-one, most of whom saw it as a safe substitute for cigarettes, since no tars or toxic gases were inhaled during its use. Smokeless was most popular in non-urban areas, where a big chaw bulging in the cheek and a flat circular snuff can bulging in a back jeans pocket were taken for signs of budding virility and considered as American as country music, say, or baseball—indeed, nearly one of three major leaguers used snuff.
The dominant entry in the smokeless field, Connecticut-based United States Tobacco (UST), was pushing all the harder now, as cigarettes were increasingly subject to health charges and social opposition. Free of advertising codes and marketing compunctions, UST and its competitors showed famous athletes enjoying smokeless and reassuring novice users, as one televised commercial did, by telling them at first they might experience slight irritation around the gums, “but learning is part of the fun, and things pass with practice, and in two weeks you’ll be a pro.” Pointed promotions of the product among the young included providing schools with free driver-education films showing
cars placarded with brand labels, licensing toy and clothing manufacturers to emblazon their products in similar fashion, tobacco-spitting contests at country fairs, and the introduction of Skoal Bandits as a “starter” brand.
But how much safer, if at all, was smokeless tobacco than its burned and inhaled form? Given the newness of the smokeless vogue and the long incubation period of cancer, heart, and other chronic killer diseases, investigators had not had time to conduct epidemiological studies. Still, of the 20,000 or so annual deaths from oral cancer by the mid-’Eighties, the Public Health Service attributed 10 to 15 percent to the use of smokeless and pointed to the heightened risk of mouth cancer based on findings to date: moderate users were fatally afflicted at more than four times the rate of nonusers, and heavy users had a fiftyfold higher risk. Smokeless, furthermore, was strong in nicotine, quickly absorbed through the oral mucosa to produce a kick comparable to cigarette smoking. A serious user—taking eight or ten dips daily—was getting the nicotine equivalent of a pack and a half to two packs of cigarettes a day. Nicotine, though, was not implicated in cancer but in heart disease, uncommon in younger people and, at any rate, a condition with multiple causes. A far more suspicious ingredient in smokeless were nitrosamines, cancer promoters present without need of combustion and in amounts ranging from several hundred to as high as 14,000 times more than the levels approved by the FDA for foods like beer and bacon. In such concentrations, nitrosamines—the effects of which were partially combated by filters on cigarettes—were likely accelerators of dysplasia in the form of oral lesions, or leukoplakia, whitish patches on the tongue or mouth lining that sometimes turned malignant. Just what biochemical processes caused this transformation was not yet clear, and laboratory animals dosed with nitrosamines had been able to slough off the carcinogenic effects. In short, the medical case against smokeless was not airtight, and the product remained essentially unregulated.
The situation began to change following the death in February 1984 of nineteen-year-old Sean Marsee, who seven years earlier had been handed a sample of Copenhagen, a leading smokeless brand, while attending a rodeo in his native Oklahoma. A schoolboy track star, Sean liked the product in part because it did not affect his wind as smoking cigarettes might have, and he soon became addicted. In time, he contracted tongue cancer, endured three increasingly mutilating courses of surgery, and died. His mother, who kept her single-parent household together by working as a nurse, sued UST on the claim of having failed to warn Sean of the hazards of snuff-dipping.
Among those whose attention was captured by the Marsee suit was Gregory N. Connolly, director of dental health at the Massachusetts Department of Public Health and, because his brother was state attorney general in the administration of Governor Michael Dukakis, well connected politically. Funny, fast-talking, and well-educated (Holy Cross, Tufts Dental, and a Harvard doctorate
in public health), Connolly started working for the state in 1980, when he was thirty-one, as smokeless began to emerge as an oral hygiene issue. After Marsee died, Connolly decided to dramatize the problem by finding five young dippers and chewers with resulting severe gum disease and taking their cautionary tale to the Boston
Globe
. The story wound up next to the comics, far from what Connolly had hoped for in the way of serious attention. To escalate the issue, he pushed his department and the state administration to back a law categorizing smokeless tobacco as a toxic substance and requiring it to carry a warning label. Scraping together $15,000 to fly in medical experts and celebrity athletes who used snuff, Connolly stage-managed lively legislative hearings, helped get
Reader’s Digest
and “60 Minutes” to carry stories on Marsee and the smokeless problem, and packaged hearings in nine other state legislatures.
Aroused now, the smokeless companies marshaled legal talent to meet the sudden regulatory challenge. “But we neutralized the industry lobbyists through use of the media,” Connolly recounted, and soon he was avidly soliciting the health voluntaries for support, urging Surgeon General Koop to undertake a special report on smokeless, and petitioning Henry Waxman to hold House hearings on a smokeless warning label bill. As the dynamic engine of this effort, Connolly found himself jaw to jaw with industry lawyers who, he recalled, alternately flattered him by suggesting that he switch sides and threatening him with professional and even physical damage if he persisted in his crusade. In 1985, he prevailed over the tobacco industry’s hold on Beacon Hill, as Massachusetts became the first state to require a warning label for smokeless.
Connolly then carried the fight to Washington, testifying at Waxman’s hearings and joining with the House health subcommittee chairman’s legislative aide Ripley Forbes on a strategy to beat UST in Congress, where the industry was terming the proposed warning label “a draconian measure.” Forbes urged Connolly and his colleagues to push hard in every state legislature where a smokeless bill was pending and to make sure the warnings were each worded slightly differently, so that the industry would be faced with the prospect of fifty different mandated labels and a perhaps ruinously costly packaging burden. Soon twenty-three states were actively considering smokeless warnings—California alone was mulling ten different variations—and Connolly gleefully advised his adversaries, “We’re going to fry you guys across the country.”
Late in the 1985 congressional term, the Senate passed a smokeless labeling bill stripped of a proposed “addictive” warning, even as the cigarette bill a year earlier had been watered down. But the health forces in the House, led by Waxman and reinforced by the antitobacco lobbying efforts of Connolly and Matt Myers, sensed that without a warning label of the sort the cigarette industry had had for nearly twenty years to shield them against liability suits, the
smokeless manufacturers faced a powerful threat to their solvency from litigants like Sean Marsee’s mother, whose case was now nearing trial. Waxman’s aide Forbes thus put together a package that included a ban on broadcast advertising for smokeless, which had boomed the product over the past decade; a larger and more noticeable label than on cigarette packs; and, most grating of all to the companies, a “savings” clause explicitly stating that the warnings did not stop liability suits from being brought.
Recalling the success of the cigarette manufacturers in softening the 1984 labeling bill and supposing that they would benefit from the borrowed strength of a united industry, the smokeless lobbyists told Forbes, Connolly, and Myers that there was no way they would accept a “savings” clause, which seemed an open invitation to stricken customers to sue them. In that event, the industry would get no bill whatever, they were told, and smokeless tobacco would be left to the mercies of the state legislatures, which might well tear them to pieces if Massachusetts was any guide. On the last night of the congressional session, the industry folded. The bill was signed early in 1986, and a few months later, Surgeon General Koop reported that the use of chewing tobacco and snuff was an unsafe alternative to smoking, a cause of mouth cancer in 3 to 5 percent of users, and a promoter of nicotine dependency and serious gum diseases, but did not declare it the primary cause of oral cancer.