Low-Yield Cigarettes = High-Yield Lawsuit?
Yesterday U.S. District Judge Jack B. Weinstein approved a class action lawsuit on behalf of every American who has ever smoked "light" cigarettes. The suit, which claims the tobacco companies tricked smokers into believing low-yield cigarettes were safer than regular cigarettes, seeks up to $200 billion in damages, an amount that could be tripled under the Racketeer Influenced and Corruption Organizations Act. Weinstein's certification of the class is likely to be overturned on appeal, since it's hard to imagine how a trial could establish that tens of millions of Americans each individually relied, to his detriment, on the tobacco companies' implied representations about the relative hazards of light cigarettes. A similar problem recently proved fatal to a Florida class action that resulted in a jaw-dropping $145 billion verdict against cigarette makers.
But the problems with this case go beyond the difficulty of proving fraud en masse. If the health advantages of light cigarettes are a myth, it's a myth the federal government propagated and maintained. The government did not merely allow the tobacco companies to advertise the official tar and nicotine "yields" of their various brands; it required them to do so. The tobacco companies certainly took advantage of this requirement, competing against each other to produce the lowest yields, but that was precisely what the government expected and wanted to happen, in the hope that smokers would switch to less dangerous brands.
Research eventually indicated that the official tar and nicotine numbers, measured by an FTC-approved method using a smoking machine, were misleading. The basic problem is that people do not smoke like machines. When nicotine is reduced along with tar, which has been the general practice, people tend to smoke more intensely to get the dose of nicotine to which they're accustomed: They take more puffs, inhale more deeply, hold the smoke longer, and subconsciously cover tiny ventilation holes. The upshot is that light cigarettes are not necessarily safer than regular cigarettes and could in some cases even be more dangerous, if they increase the amounts of toxins and carcinogens to which a smoker is exposed for a given dose of nicotine.
The obvious solution is to keep the nicotine yield the same, or even boost it, while reducing tar delivery. But that would also be a reason to sue the tobacco companies, who already are accused of "manipulating" nicotine and "spiking" cigarettes to keep their customers hooked. As Wally Olson might put it, they're sued if they do and sued if they don't. You needn't sympathize with the tobacco companies to recognize the legal insanity of this situation.