Tobacco negotiations call for open eyes - negotiations between state attorneys general and tobacco industry - Column - Brief Article

National Catholic Reporter, Sept 26, 1997 by Robert F. Drinan

As far as public health is concerned, our national interests would probably be best served if tobacco would simply disappear. But since no consensus exists supporting prohibition -- and it would no doubt flop if attempted anyway -- courts are forced to balance the free choice people make to use tobacco against the culpability of an industry that has suppressed scientific evidence and employed deceptive marketing techniques in an effort to influence that choice, with all its destructive and enormously expensive consequences.

Recently the attorneys general of several states concluded negotiations with the tobacco industry. That agreement has now been rejected by President Clinton on the grounds that it does not sufficiently attack youth smoking. So, the search for a comprehensive settlement will go on. As it does, individual states continue to pursue their own lawsuits.

I have agreed to be an expert on legal ethics for the state of Texas in its suit for damages. The litigation may end in a settlement, just as the legal action against big tobacco did in Mississippi and Florida. While I believe that negotiations may be the best way to move forward, I also think we should go into them with our eyes open about the conduct of this industry.

As an official expert witness in the Texas litigation, I have signed a solemn promise not to reveal confidential information, but the public record alone is sufficient to document the long and melancholy story of how the top five tobacco companies have persuaded millions of Americans (and countless others around the globe) that smoking is smart, sophisticated and sensible. The industry has used the most advanced marketing techniques to lure people into smoking -- especially the young. According to the industry's own records, sales goals require at least 3,000 youths each day to take up smoking. Joe Camel has been doing his job.

In addition to such objectionable advertising efforts, the industry has engaged in a deliberate campaign to obscure and in some cases to suppress scientific evidence of health risks posed by smoking. Public awareness of the addictive qualities of nicotine began to show up in the late 1950s. Incredible as it seems, the Journal of the American Medical Association carried ads for cigarettes from 1930 to 1950! Scientific evidence revealing that smoking causes cancer, heart disease and emphysema, however, began to accumulate over 30 years ago. The tobacco industry sought to question, conceal or deny this evidence.

The uniform chorus of the American Medical Association, the American Heart Association and the American Lung Association along with reports from the surgeon general have persuaded a majority of the public that smoking is dangerous and should be strongly discouraged. But for many years the tobacco industry, with its army of lawyers and publicists, have tried to drown out that chorus, showing an obvious disregard for people's health.

The industry's tactics have now shifted a bit. The presidents of two top companies have conceded in depositions that cigarettes "might have caused 100,000 deaths." While the frankness is refreshing, it does not make up for a decades-long strategy of denying the obvious risks of smoking and cynically attracting young smokers.

One could make the argument, by way of defending the industry's conduct, that the vendors of nicotine are only exploiting the craving for pleasure that is pandemic in today's culture. The merchants of tobacco are, however, more culpable than others because there is no evidence that even moderate use of their product is anything other than inherently destructive of human health.

How much the industry should pay for this behavior is a matter of debate. Under the original multi-state settlement, the top five tobacco companies agreed to pay $368.5 billion, seemingly a gigantic sum. Whatever new figure Clinton presses for, the result will doubtless be an unprecedented amount.

The cigarette vendors, however, can recoup this sum simply by raising the price of each pack of cigarettes. In return for its billions, the industry will get a reprieve from further embarrassing disclosures, exemption from treble damages under state recketeering laws, freedom from class actions, and open access to foreign markets.

Regardless of what happens in the United States, the tobacco industry will continue to sell cigarettes to the rest of the world.

About one-third of all the cigarettes in the world are now consumed by Chinese men and women. Since the government in Beijing controls the industry and receives billions in taxes from it, there is little likelihood of legal restrictions on tobacco in China. In the Philippines and most of Asia, the vast majority of people now smoke. No course of action in America, from a settlement to outright prohibition, will make the tobacco industry simply go away.

So what should American policy with regard to tobacco be? There are several options available to control the distribution of nicotine. It could be regulated by the Food and Drug Administration as a "controlled substance." Licenses to export tobacco could be restricted or denied. Widespread education of youth about the hazards of tobacco could be undertaken. The first and second of these options were made more difficulty by the proposed settlement; the third could be funded through the revenue it would generate.