Actual Knowledge

Jacob Sullum from the December 1996 issue

(Page 2 of 2)

In addition to suggesting that I am a tobacco industry flack, Hilts and Glantz et al. insinuate that the Reason Foundation, which publishes this magazine, is some kind of front group for the cigarette companies. Hilts alludes to, and Glantz et al. explicitly mention, donations from Philip Morris--which last year amounted to less than 1 percent of the foundation's budget. To anyone familiar with the foundation or the magazine, the idea that we adopt whatever positions we think will please our donors is more than a little silly. But Hilts neither names the foundation nor mentions the magazine; indeed, from his description you would not even know my occupation.

This is like identifying Hilts, not as a reporter for TheNew York Times, but as an employee of a company supported by anti-smoking groups (which take out ads in the Times). Not exactly false, but pretty misleading--just the sort of thing for which he faults the tobacco industry. Hilts also neglects to mention that the MediaCritic article reprinted by Philip Morris criticizes him by name for sloppy reporting on the secondhand smoke issue. He has never, to my knowledge, answered that criticism, and his book actually repeats one of the mistakes (by another reporter) that I cited in my article. In 1994, he notes, Philip Morris ran an ad that said: "A large U.S. study published in the American Journal of Public Health found no overall statistically significant link between second-hand smoke and lung cancer. Why did the EPA not include this study?" Hilts says "[t]he study, in fact, supported the EPA conclusion," and "[i]t would be difficult to imagine advertising that is more deceitful." He quotes the following comment from the researchers: "In summary, our study and others conducted during the past decade suggest a small but consistent elevation in the risk of lung cancer in nonsmokers due to passive smoking. The proliferation of federal, state and local regulations that restrict smoking in public places is well founded." That is indeed what the researchers said, but the issue is what their data showed. Not only did the study fail to find a statistically significant overall relationship between lung cancer and exposure to secondhand smoke in childhood or adulthood, but almost none of the subgroup results were significant either. Given the large size of the sample, it is reasonable to think that including these data would have had a noticeable impact on the EPA's calculations.

The basic syllogism on which Hilts and many of his fellow journalists rely when they write about secondhand smoke goes something like this: The tobacco companies are lying when they say the evidence against smoking is not conclusive, so they must be lying when they say the evidence against secondhand smoke is not conclusive. Hilts calls the industry's criticism of the claim that secondhand smoke kills "almost a motion-by-motion replay of 1953 and 1954, when the industry had to begin its campaign of denying that smoking itself causes disease." This facile analogy is convenient, since it means you don't have to look at the evidence very carefully. You can simply dismiss skeptics as tools of the industry. Yet Hilts himself, though persuaded that secondhand smoke causes lung cancer, writes that "the data assessing...other illnesses has not been collected in large enough samples yet." He seems to be saying the evidence is not conclusive. He sounds just like the tobacco companies!

Unlike Hilts, Richard Kluger does not fall into the trap of assuming that, whatever the tobacco companies say, the opposite must be the truth. Kluger is highly critical of the industry's posture vis-�-vis the health effects of smoking--especially the decision to actively criticize the research, instead of simply remaining silent. But he recognizes that public health officials and anti- smoking activists, in their eagerness to discourage smoking by making it inconvenient and socially unacceptable, have exaggerated both the strength of the evidence against secondhand smoke and the magnitude of the risks involved. "[T]he government's agencies," he writes, "seemed nearly as capable in this instance of blowing smoke at the public to cloud the scarcity of cold, clinical science in support of the indictment of ETS as a substantial public health risk as the cigarette companies had habitually been in denying and distorting the overwhelming scientific case against direct use of their product." Furthermore, "by stressing the risk of ETS exposure, the smoking control movement was effectively trivializing the risk from direct smoking, which was thirty to forty times greater. It was an incendiary, effective, but questionable tactic for those on the side of the angels." As that observation suggests, Kluger is basically sympathetic to the anti-smoking movement but prepared to criticize its errors and excesses. He takes a much broader and longer view than either Hilts or Glantz et al., and the result is far more nuanced and evenhanded. Kluger spent six and a half years on Ashes to Ashes, interviewing hundreds of sources and absorbing a huge amount of material from scientific studies, books, and press reports. He says his task was "to try to suspend moral judgment as long as possible in sifting through this immense and untidy collection of materials in order to craft a coherent social narrative about an industry that was, after all, a thriving enterprise well before a conclusive scientific consensus on the hazards of its products was achieved. My intent throughout has been to bring an unpremeditated approach to a subject that has historically generated more heat than light." In this respect he is remarkably successful, telling the story of the American tobacco industry not as a morality play but as a complex drama full of ambiguous characters and fascinating detail. Kluger's account is stylish, witty, and engaging--an impressive accomplishment given the amount of information he has managed to include. Although his eventual judgment of the industry is harsh, he cannot hide his appreciation for the entrepreneurial talents of the men who built it.

"The question," Kluger writes in his foreword, "is whether cigarette merchants are businessmen basically like any other, selling a product judged to be hazardous long after its usefulness to millions was well established, and are now sorely abused by 'health fascists' and moralizing busybodies, or are they moral lepers preying on the ignorant, the miserable, the emotionally vulnerable, and the genetically susceptible?" To his credit, he never explicitly answers that question--his book is too subtle for that--but he clearly leans toward the latter description. Kluger's prejudices are those of a conventional left-liberal: He is more wary of corporations than the state; he exaggerates the power of advertising; and he never doubts the government's authority to promote "public health" by discouraging risky behavior. But despite his unexamined premises, he is refreshingly fair-minded, willing to question the dogma of the anti-smoking movement. He is skeptical, for example, of the claim that smokers impose costs "on society" that should be recouped through higher excise taxes. Of the state lawsuits seeking compensation for Medicaid costs associated with smoking, he asks, "Was this any more reasonable than demanding that automakers and oil companies reimburse the states for their highway maintenance and driving- caused injury cost?"

Kluger's book shows that a knowledge of history is important in evaluating the claims of tobacco's opponents. Take the uproar that began in 1994, when Food and Drug Commissioner David Kessler suddenly discovered that nicotine was an addictive drug and that tobacco companies were manipulating it. "That nicotine was the ingredient in tobacco that induced a habitual craving for, dependency upon, or addiction to smoking cigarettes--call it what you will--had been common scientific knowledge for much of the twentieth century," Kluger writes. "That manufacturers had been controlling or manipulating the amount of nicotine their customers ordinarily derived from their cigarettes had been known for forty years, ever since the introduction of filter tips, to students of the subject, and to any portion of the public that thought a moment about it."

Kluger also reminds us that the wonderfully innovative legal arguments that are all the rage nowadays, including the cover-up charge, the alternative design claim, and the idea that addiction negates assumption of risk, have been used before without success. In Cipollone v. Liggett, filed in 1983, attorney Marc Z. Edell, using hundreds of previously confidential industry documents for support, argued that the tobacco companies had conspired to deceive consumers about the dangers of cigarettes. As a result, Rose Cipollone, who was "severely dependent" on tobacco, was falsely reassured and continued smoking until she got lung cancer. The jurors didn't buy it. They did find that Liggett had not adequately cautioned consumers in the era prior to federally mandated warnings and had in fact breached warranties of safety offered by certain ads. But they deemed Rose Cipollone 80 percent responsible for her disease, since she had chosen to smoke, and therefore did not award any damages in her name. Instead, they gave her husband a sympathy award of $400,000, which was overturned on appeal.

The recent award to Grady Carter, whose attorney submitted some of the Brown & Williamson documents as evidence, may indicate that jurors are now more receptive to the conspiracy theory. After the trial, one of the jurors said, "We wanted to send a message to the tobacco companies: We ain't going to take it no more." In other words: Cut the crap. Juries in many other kinds of cases have been only too willing to give sympathetic plaintiffs money from the deep pockets of big corporations. It's just that smokers trying to blame others for their self- inflicted injuries have not seemed very sympathetic. But then neither have tobacco companies. Since they are viewed in a more sinister light nowadays than ever before, the balance may be shifting.

Whether it should is another matter. Yes, the industry's position on the hazards of smoking has been disingenuous and irresponsible. But does it amount to fraud? The answer is clearer when it comes to early advertising claims. A 1952 Liggett ad cited in Cipollone, for example, announced, "Nose, Throat, and Accessory Organs Not Adversely Affected by Smoking Chesterfields." Even at a time when evidence about the health effects of smoking was still emerging, such claims were reckless, and they can reasonably be viewed as guarantees of safety. But after the mid-1950s, the tobacco companies eschewed bold reassurances. Instead of promising safety, they expressed doubts about the hazards of smoking. Except to the extent that they misrepresented their own beliefs--which is the essence of the "cover-up" decried by Hilts and Glantz et al.--what industry spokesmen said was not, by and large, literally false. Indeed, they carefully phrased their statements to avoid direct denial of tobacco's hazards.

More to the point, it is difficult to show that consumers relied on these legalistic evasions in deciding whether to smoke. Supporters of tobacco product liability suits argue that the industry's statements make it easier for smokers to continue their habits by offering them rationalizations: Maybe it really isn't that dangerous. Maybe I won't get sick. But it would take a smoker's willing creation of disbelief to escape what has been common knowledge for decades: that smoking is dangerous and hard to give up. "How, then," wonders Kluger, "to justify a claim that the cigarette makers had massively imposed an intentionally addicting product on an innocent public that had little knowledge or choice in the matter?"

Consider Rose Cipollone. She was exposed to hundreds of articles on the hazards of smoking. Her husband and her children repeatedly urged her to quit. She recalled that in 1964, when the Surgeon General's Advisory Committee concluded that smoking causes lung cancer, "I didn't want to hear it. I liked to smoke. It gave me something to do." Beginning in 1966, every pack she smoked carried a warning from the surgeon general. She acknowledged that she understood the warning meant "smoking was dangerous," though she insisted, "I didn't believe it." She said she felt "that if there was anything that dangerous, that the tobacco people wouldn't allow it and the government wouldn't let them do that." Still, when she developed a "smoker's cough" in the mid-'60s, "I was making novenas, I was so scared that I was getting sick, and I used to make all kinds of promises to God if he didn't let me have cancer, that I wouldn't do this and I wouldn't do that."

At some level, Rose Cipollone clearly knew that smoking was bad for her, though she did not like to think about it. The question is whether the tobacco companies should be held liable for assisting such self-deception. The answer hinges on how strictly we define individual responsibility and, conversely, how broadly we define fraud. One thing seems pretty clear: The tobacco companies didn't fool anyone who didn't want to be fooled.

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