Authors: Richard Kluger
Equally defensible were the suits for reimbursement of medical expenses filed by the states of Mississippi, Minnesota, and West Virginia and being contemplated by Florida, which in effect demanded that, for smoking-caused illnesses, the cigarette manufacturers assume the states’ role as health insurers of their citizens. Was this any more reasonable than demanding that automakers and oil companies reimburse the states for their highway maintenance and driving-caused injury costs? Although the state suits said their claims were not based on injuries suffered by individual smokers, tobacco industry lawyers could point to precedent holdings that third-party payers had no greater claims than those receiving the health care, so that the state cases arguably amounted to personal injury claims in disguise, of the sort preempted by the federal cigarette labeling laws and upheld by the Supreme Court in
Cipollone
. There was growing evidence, as well, that the states might not be net losers due to smokers’
call on public health-care funds in view of their shorter life spans (and thus reduced use of public services generally) and what they paid in the form of cigarette taxes. As for the class action by flight attendants and similar suits contemplated over diseases said to be linked to environmental tobacco smoke, industry lawyers could argue that (1) ETS had not been officially declared lethal or a serious threat to healthy people until the EPA’s 1993 risk assessment was issued; (2) the EPA conclusions were based on data that some disinterested observers believed to be at best a marginal indictment of ETS as an authentic peril to health (though it was surely an annoyance); and (3) if ETS was found to be a health threat to flight personnel, why were cigarette makers liable rather than the owners of the airlines who controlled the working conditions within their planes?
But, for all the legal brainpower their money could hire, the tobacco manufacturers had to face the likelihood, perhaps the certainty, that someday some jury—and sooner probably than later—would reach a verdict against the industry that would, upon final appeal, be sustained. And then the cigarette makers, who, as the evidence presented in this book strongly suggests, well understood the health charges against them and had by utterance and action tried for forty years to blind the public to the severity of the risks of smoking, could well be dealt with unkindly—and in a grievously costly fashion. Other massive blows might follow, ending the industry’s flow of riches.
Would it not, then, make more sense for the tobacco industry, rather than fighting to the bitter end, to abandon its lush but precarious existence beside the ever-rumbling volcano and make peace with the American public, the majority of whom scorns smoking, little pities those enslaved to it, and views with contempt the companies living off it? Would it not greatly benefit both the public health and an industry under constant dread of disaster from litigants and regulators to reach an accommodation? Such an arrangement, sure to be denounced by the more zealous wing of the antismoking movement as a gift to Mammon and resisted by industry diehards incapable of conceding their past culpability, might relieve the severest effects of a deadly product that, practically speaking, cannot be outlawed.
The linchpin of such an agreement—indeed, the only inducement that might bring the industry to the bargaining table—would be a blanket (and retroactive) exemption by Congress from all personal injury claims by smokers against the cigarette manufacturers (except those suits involving contaminated ingredients). In return for this immense grant of relief, the tobacco industry could be asked to agree to the following measures:
1. The twenty-four-cent federal excise tax on cigarettes would go to fifty cents and thereafter become an ad valorem tax not to exceed 50 percent of the wholesale price. Based on 1995 data, such a tax would yield between $12 and
$14 billion, about twice the present U.S. cigarette tax revenue, to be used to pay for all the costs incurred by the subsequent provisions of this agreement; any surplus would go to defray the cost of the Medicare program.
2. FDA would have oversight of the manufacturing and marketing of cigarettes, including the power to set maximum tar and nicotine yields, to be reduced over a ten-year span to 5.0 and 0.5 milligrams, respectively. This level would cut but not eliminate the addictive properties of nicotine and the “kick” smokers derive from the habit, nor could it prevent compensatory smoking behavior, the nature and risk of which would be spelled out on inserts in every cigarette package. While such a ceiling on toxic yields might invite the creation of a black market for stronger cigarettes, these would be officially classified as illicit drugs, and efforts to police their sale would be preferable to not trying to reduce dangerously high dosages. The FDA would monitor dosage levels in its laboratories.
3. Every cigarette package would carry that brand’s tar and nicotine yield and a list of other ingredients the FDA believed perilous to smokers’ health, even if found only in trace amounts. Warning labels would also state that smoking was addicting for many people, that smokers live on the average approximately eight fewer years than nonsmokers, and that carbon monoxide—now indicated in one of the four rotating warning labels as merely an ingredient in smoke—is a poison linked to heart disease.
4. Cigarette advertisements would be restricted to the “tombstone” format, in black and white only, with no illustrations permitted other than a small picture of the pack. Nor could cigarette brand names be used in promotions, including logos on merchandise or as the sponsor of cultural exhibitions, artistic performances, or sports events. Advertising and promotional outlays by tobacco companies would no longer be tax deductible—a measure aimed at both discouraging the propagation of smoking and reducing the high profitability of the tobacco business.
5. Free sampling of cigarettes and their sale in vending machines would be forbidden. Sale of cigarettes would be allowed only in state-licensed stores, and those selling to buyers under the age of eighteen would face painful fines and, for repeated violation, loss of their sales licenses.
6. The federal support program for the tobacco crop, an enticement to hazardous public-health practices, would be discontinued. Tobacco growers would be eligible for up to three years for federal grants to compensate for the resulting shortfall in their incomes, based on the average crop prices they had received over the preceding five years. The money to ease the burden on farmers during this transition period would come from the increased federal cigarette excise tax (see #1 above).
7. The Office on Smoking and Health would function as a separate entity within the U.S. Public Health Service to educate the public on the perils of
smoking through school and other community programs and paid advertisements using both print and broadcast media. OSH might also operate quit clinics for smokers using hospitals or other health facilities. Further reports by the U.S. Surgeon General on the health consequences of smoking would cease; they have performed their function well.
8. Smoking in all locations where the public congregates, indoors and outdoors, would be restricted to confined and properly ventilated areas.
The tobacco industry could surely survive this regimen, undoubtedly better than some of its customers. The legislative package could be designed and wrapped with a bow by a Republican-controlled Congress, more likely to be sensitive to the companies’ concerns and generous about the provisions. But if a Republican majority proved unwilling to broker such a negotiation or impose it on an obstinate industry, then surely a future, probably Democratic-controlled Congress in league with a resolute President could do so. Such a rational and civilized remedy, though, is probably too much to hope for as slayer of an incubus that has defied all reason, thrived on greed and folly, and driven poor mortals to grasp onto it for succor in a fashion their Maker never designed their bodies to long endure.
A Note on Sources and Acknowledgments
This narrative has been drawn from sources too numerous and disparate to account for in every instance, given the fact that the subject is a common social habit and ubiquitous item of commerce indulged in by hundreds of millions of people. The chief primary sources utilized were some 500 studies by scientific investigators examining the properties of tobacco and the health consequences of smoking and interviews with nearly 300 individuals who have been closely connected with advancing or thwarting the activities of the American cigarette industry. The main secondary sources were readings in the sprawling body of literature on the subject, including several hundred books and several thousand articles in the daily and periodical press. What was most notable about these secondary sources was how few manifested a disinterested and critical assessment of the evidence related to the health aspects of smoking. Much of the literature, furthermore, took the form of either industry boosterism by paid apologists and those too passionately devoted to smoking to bear hearing it ill spoken of, or of sharp assaults on the custom as an inexcusable scourge, with scant acknowledgment of, or interest in, its perceived pleasures and benefits—and none at all regarding the quandary in which the tobacco industry found itself, partly of its own doing, as the medical case against smoking grew ever more persuasive.
The author’s most difficult task, accordingly, was to try to suspend moral judgment as long as possible in sifting through this immense and untidy collecplacing
the old Coalition on Smoking or Health and leaguing more than 100 non-government health, civic, corporate, youth, and religious organizations, sallied forth under the banner of the National Center for Tobacco-Free Kids, with an annual budget approaching $10 million, most prominently funded by the Robert Wood Johnson Foundation and the American Cancer Society. Late in April 1997 a U.S. federal district judge in North Carolina, heartland of the tobacco industry, upheld the long belated move by the FDA to regulate cigarettes in view of their undeniable pharmacological and pathological effects on the human body. And while the court ruled that the FDA had exceeded its statutory mission by trying to restrict tobacco advertising and promotional practices in an effort to make smoking less seductive to suggestible teenagers, a number of other options remained open to government officials, including FTC initiatives and action by Congress to limit the cigarette companies’ marketing excesses.
The exercise of FDA regulatory powers over tobacco, likely to be appealed in the courts by the industry and just as likely to be affirmed, further pressured the cigarette makers who, for all their deep pockets, were beginning to groan under the ever weightier burden of litigation. By the spring of 1997 nearly half the states had brought suit against the industry for the reimbursement of public funds spent to care for smoking victims (however dubious the mathematical underpinning of the states’ claims), and individual litigants had begun to win jury verdicts in product liability actions (despite the Supreme Court’s holding in
Cipollone
that smokers had been adequately warned of their peril), with many more cases, including massive class actions, in the offing. Even though none of the internal industry documents unearthed during litigation over the past decade or handed out by whistle-blowers revealed that the tobacco companies were harboring dark secrets about the lethal consequences of smoking that had not long been common knowledge to the public and surely to independent health investigators, the documents as a whole demonstrated beyond a reasonable doubt that company officials had for a generation been denying what they and their scientists knew to be the truth about the lethal consequences of smoking. This structured dissembling arguably amounted to a conspiracy to defraud the American public—an intentional tort of the kind that the Supreme Court had let stand as a cause of action against the industry by product liability claimants—and left the companies highly vulnerable to retribution by angry jurors and, very possibly, the U.S. Department of Justice.
When little Liggett, whose buccaneer proprietor tried to insulate his failing company from liability and reimbursement claims by striking a deal with suing state attorneys general, agreeing to pay over a quarter of its slender profits during the next twenty-five years and confessing that it had indeed long been aware of the unhealthful properties of its chief product, tobacco’s kingpins were shaken. As part of its accord, the runt of the industry agreed to turn over
intercompany documents that threatened to further-illuminate the extent of the cigarette makers’ concerted disinformation campaign. Soon Philip Morris’s tough-guy CEO Geoffrey Bible was at the bargaining table with his RJR sidekick, beginning to negotiate a possible “global settlement” with state officials and Tobacco-Free Kids counsel Matthew Myers, back at center stage as the antismoking forces’ chief bargainer, while the White House monitored the talks.
To buy their way out from under the critical mass of impending and threatened litigation, Big Tobacco was now offering, according to published reports of the closed-door negotiations, to set aside perhaps as much as $350 billion in conscience money payable to smoking victims and state agencies that paid for their care, and to yield some control to government regulators over the marketing and possibly even the manufacturing and labeling of cigarettes. Fervent antismoking activists grumbled that any such deal—however large the collective punitive payment into a kitty to compensate stricken smokers and nonsmoking taxpayers—would in effect absolve the industry from the consequences of its chronic immoral conduct.
Such ceaseless (but hardly unmerited) tobacco-bashing, however, obscured the overriding national interest in an equitable, congressionally sanctioned accord between the industry and the rest of the nation—namely, the need to protect the public health by requiring, at long last, through the FDA and other appropriate government agencies, that cigarettes be manufactured in a less lethal and addicting form, be packaged with full disclosure of their toxic ingredients, and be marketed with frank acknowledgment of their deadly potency. It may have been fine public health policy—and great politics—to assign the highest priority to deterring young people from smoking, but there remained some 40 million adult American smokers, many of them hopelessly hooked, who deserved to be protected from a product without any limits on its tar, nicotine, carbon monoxide, and other noxious ingredients.