Dealers' Choices

The tobacco companies have renounced the principles that made it possible to defend them.


"You're defending the tobacco companies!", an apoplectic cigarette-model-turned-anti-smoking-activist screamed at me. "They're merchants of death….How dare you defend them!" On occasions like these, I used to insist that I was defending the tobacco companies because important principles were at stake: freedom of speech, the rule of law, property rights, individual responsibility, the liberty to trade longevity for pleasure. But the tobacco companies freed me from the burden of defending them when they agreed to the nationwide liability settlement proposed last summer, thereby renouncing all of these principles. Now I am in the unaccustomed position of rooting for the industry's most militant opponents, hoping the deal will fall apart.

Philip Morris used to be very keen on the First Amendment, celebrating our civil liberties in TV ads, underwriting a National Archives exhibit marking the Bill of Rights bicentennial, and sponsoring a contest for the best essay on the right to advertise. The first sign that the company's enthusiasm might be waning came after the Food and Drug Administration proposed severe restrictions on tobacco advertising and promotion in August 1995. Among other things, the FDA wanted to ban premiums such as hats, tote bags, and lighters; brand-name sponsorship of sporting and cultural events; outdoor advertising within 1,000 feet of a playground or school; and the use of pictures in outdoor signs, indoor signs in locations accessible to minors, or print ads in publications read by minors. Philip Morris responded by suggesting legislation imposing a less sweeping set of restrictions on the industry. Thus the market leader, with the most to lose from a vigorous contest for smokers' business, was asking Congress to hobble its competitors.

Now Philip Morris and the country's number-two cigarette maker, R.J. Reynolds, negotiating on behalf of the industry, have offered to accept the FDA's restrictions and go even further, forsaking outdoor signs, Internet advertising, the use of cartoon characters or human figures, and product placement in movies, TV shows, or video games. Their readiness to accept such limits, which were reportedly part of the industry's opening offer, should give pause to anyone who thinks the Marlboro Man, Merit Awards, and the Kool Jazz Festival play a vital role in keeping Americans smoking. Nevertheless, tobacco's opponents do complain, loudly and incessantly, about such institutions, and they are not likely to get rid of them without the industry's cooperation. U.S. District Judge William L. Osteen, who upheld the FDA's jurisdiction over cigarettes in April, also ruled that it does not have the authority to regulate tobacco advertising and promotion. Even if it did, a Supreme Court that in recent years has subjected restrictions on commercial speech to increasingly close scrutiny is not likely to uphold a program of censorship as ambitious as this.

The advantage of the settlement proposal, from the perspective of people whose nightmares revolve around Joe Camel and Virginia Slims models, is that the tobacco companies are doing to themselves what they have long insisted the government should never be allowed to do. If legislation restricting tobacco advertising and promotion is overturned, the companies will still be bound by a consent order imposing the same restraints. Philip Morris et al. used to wave the First Amendment. Now they are waiving it.

Even leaving aside the twin threats of litigation and regulation that led to this deal, the coercive implications of the speech limits are not hard to see. What about people who are not party to the agreement? Suppose I start a tobacco company, and I want to advertise on a big billboard in Times Square. Or suppose a foreign tobacco company wants to advertise its brand to American consumers on the Internet. In a country where the established cigarette makers have agreed to forgo such indecent speech, would exceptions be tolerated?

Nor does the mischief stop with cigarettes. Inevitably, the tobacco industry's capitulation will be cited as a precedent for every other business that offends the sensibilities of the professionally indignant: alcohol, pornography, firearms, fur, boxing, fast food–you name it. "We're infuriated at tobacco companies for enticing kids to smoke, so we don't want Joe Camel on billboards," Kelly Brownell, the psychologist who directs Yale's Center for Eating and Weight Disorders, recently told the New Haven Register. "Is it any different to have Ronald McDonald asking kids to eat foods that are bad for them?" Thanks to the tobacco industry's surrender, politicians will be pondering such questions soon enough.

Conceding FDA authority over cigarettes may also have ramifications for other industries. In February 1994, when FDA Commissioner David Kessler first suggested that the agency had jurisdiction to regulate cigarettes, he was contradicting every one of his predecessors, along with tobacco's opponents in Congress, who had repeatedly introduced legislation to give the FDA the authority he claimed it already had. Kessler reinterpreted a definition of drug in the Food, Drug, and Cosmetic Act: "articles (other than food) intended to affect the structure or any function of the body of man or other animals." Taken literally, this definition encompasses many items that are not ordinarily considered drugs, including bullets, pepper spray, and pornography. Indeed, as the U.S. Court of Appeals for the District of Columbia Circuit noted in 1980, "Anything which stimulates any of the senses may be said…to affect the functions of the body of man." Recognizing that Congress could not have intended the law to sweep so broadly, the FDA had always taken the position that it would not regulate cigarettes as drugs unless a manufacturer made explicit health claims. Federal courts upheld this interpretation of the law.

Citing "mounting evidence" that was neither new nor relevant, Kessler reversed that policy, classifying cigarettes as "drug delivery systems," a kind of medical device. Last April, in response to an industry lawsuit, Judge Osteen noted that "FDA officials testified before congressional committees on numerous occasions that the agency lacked jurisdiction to regulate tobacco products" and that "members of Congress agreed with FDA's assertions that it lacked jurisdiction." Still, he said, because Congress had defined both drug and device broadly and had never explicitly forbidden the FDA to regulate tobacco products, the agency's new reading of the law was reasonable.

If so, the FDA apparently has carte blanche to regulate as drugs or devices a wide range of products that members of Congress never imagined would be so classified, and the FDA's current interpretation of the law is no guide to how it may act in the future. This understanding of the agency's authority replaces the rule of law with the whim of the FDA commissioner. Legal experts think there's a good chance Osteen's decision would be overturned had the industry pursued an appeal, but the tobacco companies promised to abandon their challenge as part of the settlement proposal. The deal recommends a separate category of medical devices especially for tobacco products–an implicit acknowledgment that cigarettes do not fit into the current regulatory framework.

The tobacco companies also signed away the rights of business owners by endorsing federal legislation restricting smoking on private property. The deal calls for a watered-down version of the Smoke-Free Environment Act introduced by Rep. Henry Waxman (D-Calif.), which bans smoking in any building regularly entered by 10 or more people at least one day a week. The tobacco companies used to argue that business people should be allowed to establish rules for smoking on their own property, without interference from city council members or state legislators. Now they are inviting congressional interference, albeit with exemptions for certain businesses.

The money promised by the tobacco companies speaks even more loudly than the regulations they accepted. By agreeing to settle the state lawsuits demanding compensation for the cost of treating smoking-related illness under Medicaid, they seemed to endorse the notion that, having forced taxpayers to fund other people's health care, politicians may then extort money from manufacturers of products associated with disease or injury. This premise suggests a long list of potential defendants. A state might sue makers of alcoholic beverages, which can cause cirrhosis of the liver; dairy products, which contribute to heart disease; candy, which fosters tooth decay and obesity; and such instruments of injury as guns, cars, skis, skateboards, and bathtubs.

Blaming manufacturers lets consumers off the hook. The rejection of individual responsibility is even clearer in the industry's agreement to settle claims by smokers and their families. Until recently, tobacco companies had always insisted, and juries had always recognized, that cigarettes do not smoke themselves. This simple reality is the main reason no tobacco company ever had to pay a cent to a smoker in more than four decades of litigation.

Denying responsibility is a prelude to denying freedom. If smokers are helpless victims, tricked into nicotine slavery by a conspiracy of deception, it is presumably the government's duty to free them. They can be free only if they stop smoking, and many of them will not stop smoking on their own. So they must be scolded, prodded, fined, restricted, and ostracized. If they complain, saying that smoking is their choice and the government has no business interfering, it's because they are suffering from a slave mentality, a sort of false consciousness. And that, too, can be remedied. The tobacco companies have taken the first step.