Let's Make a Deal

As the proposed tobacco settlement heads to Congress, the anti-smoking movement is divided over whether it's a good deal after all. A guide to the players, the alliances they've established, and who hopes to get what.

Jacob Sullum from the October 1997 issue

(Page 2 of 2)

C. Everett Koop. Koop, who as surgeon general in 1984 called for "a smoke-free society" by 2000, expressed the same concerns about FDA authority as Kessler. He also urged heavier penalties for failure to meet the smoking reduction goals and criticized the limits on liability. Like Kessler, though, he seemed open to some sort of deal. "I have often been misquoted that I am adamantly opposed to a settlement," he said on Nightline in June. Many anti-smoking activists, he noted, "want to see the culprit, the tobacco industry, flogged in public, and I understand how they feel. I feel that way myself. They are very guilty. But flogging a company in public, if it does not produce something for the health of the American people, is a futile gesture." Like Kessler, he seemed less open to compromise when he testified before a Senate committee in July, urging lawmakers to "face the scourge of tobacco for what it is and legislate a tobacco policy that holds the industry accountable."

The White House. President Clinton would like to claim he helped save the youth of America from Big Tobacco, and to do that he needs a package of new regulations. The administration's main demand is unlimited FDA authority. It may also insist on heavier penalties, and it has questioned the tax deductibility of the industry's payments. But so far no one at the White House has complained about the liability restrictions. "I don't think any of us...are reviewing it with the view toward either saying we're going to embrace it or kill it, and there's no other option," Clinton said at a press conference in June, sympathizing with members of Congress who "were hoping that if they couldn't completely embrace it, that at least it could be salvaged."

Henry Waxman. The California Democrat, one of the industry's staunchest opponents in the House, welcomed the opportunity to put his imprint on tobacco legislation. "There is no way in the world this proposal gets enacted the way it was announced," Waxman's press secretary, Phil Schiliro, told The New York Times in June. "There will be enormous differences between the proposal and the legislative language....What remains to be seen is how different, and how long it takes and whether it ever gets done at all."

Joseph Califano. As Jimmy Carter's secretary of health, education, and welfare, Califano said smokers were "committing slow-motion suicide" and declared tobacco "Public Health Enemy Number One." Now president of the Center on Addiction and Substance Abuse at Columbia University, he criticized the tobacco deal in a June 23 Washington Post op-ed piece, complaining about the size of the payout, the liability limits, the lack of a tax hike (though the fine imposed on the industry would have the same impact once it was passed on to customers), and the absence of payments for the federal share of smokers' health coverage. "The big question," he wrote, "is whether the president and Congress can build on this work and get all American taxpayers a fair deal from an industry that confesses that for years it has made its profits by lying, pushing an addictive product on American teens and killing more Americans than have died in all our wars and auto accidents combined."

Militants

American Lung Association. The ALA, which used to be allied with the American Cancer Society and the American Heart Association in the Coalition on Smoking or Health, is now noticeably more extreme. It opposed the tobacco talks from the start, and after the proposed deal was announced, ALA Managing Director John R. Garrison said flatly, "Now is not the time to settle."

Ralph Nader. In a June 19 letter to the ACS, the AHA, the AMA, and the National Center for Tobacco-Free Kids, Nader warned against "premature support for a settlement," saying "those involved in the negotiations and their close supporters have become invested in the negotiation process." He also implied that their judgment had been compromised by the lure of anti-smoking money. He held out the hope that "a host of new disclosures, initiatives, regulatory controls and lawsuits not yet contemplated" would force the "tobacco drug addiction companies" to give up more.

Action on Smoking and Health. ASH Executive Director John Banzhaf, who as a young lawyer in 1966 filed a complaint with the Federal Communications Commission that eventually led to the ban on broadcast advertising of cigarettes, used to call himself "the Nader of the cigarette industry." So it's not surprising that he and Nader see eye to eye on the proposed settlement. During the talks, Banzhaf complained that avaricious plaintiffs' lawyers and ambitious attorneys general have their own agendas and "can hardly claim to represent the antismoking or public health community." As a member of the Koop-Kessler committee, he repeatedly rejected the idea of "accepting the industry position [i.e., the proposed settlement] as a starting point."

Hubert H. Humphrey III. "Every time we think we're dancing on this industry's grave," the Minnesota attorney general told the Koop-Kessler panel two days before the settlement proposal was announced, "they have instead found a way to keep dancing on those of our loved ones." If the scheduled trials proceeded, he argued, more damning information would emerge, and the industry would be under greater pressure to compromise. "What's the rush?" he asked. "If we just take just enough time to get it right, America can make the rules, and we won't have to trade away the rights of victims or the powers of the federal government to fashion a real solution." After the details were made public, he said, "I fear that this deal could be a tobacco bailout." In congressional testimony on July 16, he called the agreement a "Trojan Camel."

Stanley Rosenblatt. A pioneer of the tobacco class action, Rosenblatt is handling two big cases: Broin v. Philip Morris, which went to trial in July, represents flight attendants who claim injuries from secondhand smoke, while Engle v. R.J. Reynolds, scheduled for trial this fall, represents Florida smokers. His suits are much further along than the class actions filed by the consortium of big-name lawyers, and he is a more passionate enemy of the tobacco industry, so he is less eager to settle. The trial judge in Broin ruled that the case could continue despite the proposed settlement.

American Trial Lawyers Association. The tobacco deal is good for some trial lawyers but not for trial lawyers as a whole, since it limits the potential for future income. In July ATLA said it would oppose any settlement that "restricts trial by jury or otherwise compromises access to justice, preempts state laws or limits compensatory or exemplary [punitive] damages."

Stanton Glantz. Writing in the Los Angeles Times on June 23, the co-founder of Californians (now Americans) for Nonsmokers' Rights noted that tobacco stocks had gone up during the settlement talks. "The business community clearly thinks this deal is good for tobacco," he said. "And what is good for tobacco is bad for public health." If litigation is allowed to continue, Glantz predicted, "the tobacco industry will lose enough of these cases to be brought to its knees. At that point, the same stock market that has been bidding up tobacco stocks will force R.J. Reynolds, Philip Morris and the others out of the tobacco business." With
the stocks plummeting, he said, the government should take over the tobacco business, shut down foreign operations, and "make plain cigarettes available...for smokers who can't quit." Glantz compared the tobacco companies--unfavorably--to Timothy McVeigh, convicted of murdering 168 people in Oklahoma City. "The tobacco industry has killed 10 million Americans since 1964," he said. "No attorney general or politician ever considered letting McVeigh cop a plea; the same should be true for the tobacco industry."

With their fantasies of dictating terms to a vanquished enemy, hard-liners like Glantz refuse to acknowledge that the policy changes they want will require the industry's cooperation. Given recent Supreme Court rulings in commercial speech cases, for example, it's unlikely that limits on advertising and promotion like those in the proposed settlement would pass constitutional muster if the tobacco companies did not consent to them. In any case, the FDA does not have the statutory authority to impose such restrictions. As Novelli told the Koop-Kessler committee, "the tobacco industry is not on the canvas." It can continue to fight in the courts and legislatures for decades to come.

Even the moderates may insist on terms the industry won't accept. "We recognize that this is going to go through the legislative process," a Philip Morris lawyer told the Senate Judiciary Committee in late June. "Obviously, there are parts of this that the industry might find unacceptable to lose, and there are provisions that the industry would find acceptable to see modified." The tobacco companies may be willing to give up the limits on FDA authority, but it's hard to imagine why they would agree to a package that offered no protection against future lawsuits--the main threat that brought them to the table in the first place. And there's got to be an upper limit to the amount of money they're prepared to shell out.

When push comes to shove, of course, some of the deal's critics may be prepared to give up what they now present as nonnegotiable demands. Since the key parties have a strong interest in putting together a package, it seems likely that some sort of legislation will emerge that gives the industry a measure of security and predictability in exchange for anti-smoking policies and programs that tobacco's opponents could not otherwise hope to see anytime soon. But the tobacco companies will have to get something other than an end to lawsuits in which the plaintiffs are willing to settle. After all, they could get that without any help from Congress.

For anyone who believes that smoking is a matter of personal choice in which the government has no business meddling, the arguments about the details of this package will be frustrating. The news media have long portrayed the tobacco controversy as a struggle between greedy merchants of death and selfless defenders of the public health, and the industry's dramatic concessions left the ground for debate narrower than ever. It seemed the only issue left to resolve was whether the deal went far enough.

But whatever Congress ultimately decides, the crusade for a smoke-free society will continue, because it is aimed at the behavior of individuals, not the behavior of corporations. Even if tobacco's opponents could achieve the chimerical goal of eliminating smoking by minors, they would not be satisfied. "The goal is not just to reduce childhood addiction to nicotine and to tobacco products," Mark Pertschuk of Americans for Nonsmokers' Rights reminded the Koop-Kessler committee. "It's also to reduce adult addiction to levels which are feasible." Michele Bloch of the American Medical Women's Association made the same point: "I would ask that in our own recommendations, in addition to putting youth as our top priority, we not tie our hands from working on reducing adult smoking through penalties, etc., when the time comes." Smokers should stock up while they can.