Campaigning in the Court

The Misuse of the Legal System Against Unpopular Industries

(Presented at Hillsdale College, September 16, 1999)

A few years ago, the anti-smoking activist Stanton Glantz, together with four of his colleagues, published an annotated collection of tobacco industry documents called The Cigarette Papers. The book contrasted the industry’s public positions on the hazards and addictiveness of cigarettes with its behind-the-scenes concessions. In the foreword, former Surgeon General C. Everett Koop observed that "the public knows about the deleterious effects of smoking," and "even smokers do not believe what they hear from the industry." Nevertheless, he said, "smokers and nonsmokers alike should feel misled by the tobacco companies and their deceptive practices."

That contradiction is at the heart of nearly all the lawsuits that have been filed against the tobacco companies. On the one hand, they are accused of saying things about their products that everyone knows to be false–that nicotine is not addictive, for example, or that the connection between smoking and lung cancer has not been conclusively established. On the other hand, they are accused of fooling people into believing these obviously untrue claims. In short, they are charged with concealing common knowledge.

It is a puzzling charge, and later I will talk about how it has fared in court. But first let me address the concerns of those who wonder whether I am projecting backward our current knowledge about smoking, mistakenly attributing it to people who were in fact ignorant of tobacco’s hazards. Today we know that smoking can be a hard habit to break and that it tends to shorten your life, but perhaps the people who started smoking in previous decades were not so well-informed. Now that the veil has been lifted from their eyes by public servants such as C. Everett Koop, they realize how dangerous cigarettes are. But when they took up the habit, they had no idea the risks they were taking, because the tobacco companies tricked them into believing that cigarettes were safe.

This scenario does not withstand even the most cursory historical inquiry. The truth is that warnings about the health risks of smoking go back hundreds of years. King James I, in his 1604 Counterblaste to Tobacco, called smoking "a custome lothsome to the eye, hatefull to the Nose, harmefull to the braine, dangerous to the Lungs, and in the blacke stinking fume thereof, neerest resembling the horrible Stygian smoke of the pit that is bottomlesse." In every generation, tobacco’s opponents have echoed him, attributing a long list of maladies to smoking.

"What difference is there between a smoker and a suicide," asked a Jesuit priest in 1658, "except that the one takes longer to kill himself than the other? Because of this perpetual smoking, the pure oil of the lamp of life dries up and disappears, and the fair flame of life itself flickers out and goes out, all because of this barbarous habit."

The 18th-century American physician Benjamin Rush warned that tobacco use could lead to impaired appetite, indigestion and other stomach disorders, tremors, palsy, apoplexy, tooth loss, and cancer of the lip. In an early version of what today is called the "gateway theory" of drug use, he also claimed that smoking fostered drunkenness because it created a peculiar kind of thirst that could be satisfied only by liquor.

In 1898 the Supreme Court of Tennessee upheld that state’s ban on cigarettes, declaring them "wholly noxious and deleterious to health." "Their use is always harmful," said the court, "never beneficial. They possess no virtue, but are inherently bad, bad only. They find no true commendation for merit or usefulness in any sphere. On the contrary, they are widely condemned as pernicious altogether. Beyond any question, their every tendency is toward the impairment of physical health and mental vigor."

This view was not universally shared. Indeed, the cigarette bans that were passed by many states in the late 19th and early 20th centuries were a response to a surge in consumption that continued, more or less steadily, until the 1960s. But certainly no one thought he was doing his body any good by smoking, and persuasive scientific evidence of tobacco’s hazards began to emerge in the early 1930s.

By the early ’50s, those hazards were receiving wide attention. The attention has included thousands of scientific studies, the most important of which were covered in the general press; dozens of major government reports; countless newspaper and magazine stories; anti-smoking commercials, print ads, billboards, posters, pamphlets, buttons, bumper stickers, and school curricula; and cautionary labels in every tobacco ad and on every package of cigarettes. In the face of all these warnings, it is hard to argue that the tobacco companies succeeded in pulling the wool over anyone’s eyes.

That does not stop people from trying. A few years ago I appeared on a radio show with a man named Alan Landers, a former model for Winston cigarettes who was suing several tobacco companies for manufacturing the product he used to promote. Then in his 50s, Landers had tried his first cigarette when he was 9 and had begun smoking heavily as an adult. He was diagnosed with lung cancer in 1988.

"At what point did you realize that smoking was bad for you?" the talk show’s host asked him. "I got lung cancer," Landers replied, "and heard the truth about how the tobacco industry, the cigarette companies lie to you." He said the first surgeon general’s warning, which began appearing on cigarette packages in 1966, did not impress him: "That label said, ‘Cigarette smoking may be hazardous to your health.’ Well, I lived in New York at the time. So is walking across the street. That meant nothing. From 1970 to 1984, the next label was, ‘Warning: The Surgeon General has determined that cigarette smoking is hazardous to your health.’ Well, that doesn’t say the truth either. Now, 1984 to present, they finally came out and said, ‘Surgeon General’s Warning: Smoking causes lung cancer, heart disease, and emphysema.’...By the time I found out that it causes lung cancer, it was in 1984. I got my cancer in ’88. It was too late."

The host asked Landers about the many statements by scientists and government officials regarding the hazards of smoking. "That means nothing," he said. "That’s announced like one time, or put in a newspaper. I didn’t happen to see that. What means something is what they’re putting on their labeling....If I saw a pack of cigarettes, and it said, ‘Addictive Poison,’ I never would have smoked."

Landers’s claim that he did not know about the link between smoking and lung cancer until 1984 is hard to believe. As I’ve noted, the hazards of smoking, especially the risk of lung cancer, have been widely publicized since the early ’50s. In addition to all the scientific studies, the surgeon general has issued more than 20 reports on the health consequences of smoking, beginning in 1964. Voluntary health organizations have been urging smokers to quit for decades through posters, pamphlets, and commercials. In the late 1960s and early ’70s, when Landers was hawking Winstons in magazine ads and on billboards, anti-smoking public service announcements appeared frequently on radio and TV. I was a little kid at the time, and I got the message. It’s hard to see how anyone could have missed it.

The same is true of tobacco’s addictive potential. Like the health hazards of smoking, this is something that people have been talking about for centuries. And unlike those hazards, it was not something that needed to be confirmed by rigorous research, because it was clear from everyday experience. James I’s lord chancellor, Sir Francis Bacon, observed, "In our times the use of tobacco is growing greatly and conquers men with a certain secret pleasure, so that those who have once become accustomed thereto can later hardly be restrained therefrom." Johann Michael Moscherosch, a 17th-century polemicist, called smokers "thralls to the tobacco fiend," while Cotton Mather dubbed them "Slave[s] to the Pipe." Louis XIV’s court physician described the tobacco habit as "a fatal, insatiable necessity...a permanent epilepsy."

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