When Paternalists Fall in Love With Greedy Lawyers
Last week marked the 10th anniversary of the Master Settlement Agreement (MSA) that resolved state lawsuits against the leading tobacco manufacturers. The occasion prompted attempts by the agreement's supporters to portray it as a great "public health" victory, as opposed to a government-backed conspiracy in restraint of trade that enriched trial lawyers, protected Big Tobacco from competition, and brought state treasuries more than $200 billion in found money, all at the expense of smokers, usually portrayed as victims of the companies that benefited from the deal. A good example of MSA boosterism was provided by syndicated columnist Marie Cocco, who opined that the public-spirited lawyers behind the deal have helped "save millions of lives and billions in health costs." Let's ignore the fact that discouraging people from smoking does not prevent deaths so much as delay them, and that increasing the ranks of longer-lived nonsmokers actually raises total spending on health care instead of reducing it. Is Cocco right to argue that the MSA "may well be the most significant advance in the campaign to curtail tobacco use since the 1964 surgeon general's report"?
Cocco notes that per capita cigarette consumption has fallen by about 28 percent since the MSA was signed in 1998. That compares to a decline of about 22 percent in the previous decade. Cocco attributes the acceleration of the downward trend to the MSA's restrictions on cigarette advertising and promotion, which included bans on billboards and on merchandise embossed with cigarette logos. I am skeptical that advertising has such a powerful effect on total consumption of cigarettes (as opposed to brand share), and Cocco offers no evidence to back up her thesis.
Tellingly, Cocco fails to mention that during this same period state and local cigarette taxes were raised over and over again. The one aspect of the MSA than can most plausibly be credited with discouraging consumption, a price increase of about 45 cents a pack that the tobacco companies used to cover their payments to the states, pales in comparison with the increase in the average state cigarette tax, which rose from about 35 cents in 1998 to $1.19 this year. Meanwhile, smoking bans have proliferated throughout the country and become increasingly strict. Cocco notes this development, which had nothing to do with the MSA, but still clings to the notion that getting rid of Marlboro billboards and Joe Camel T-shirts deserves the lion's share of the credit for reducing cigarette consumption.
Predictably, Cocco wraps up her ode to the MSA by endorsing the notion that when legislatures fail to approve the policies she likes, the courts should do so instead:
There was no get-rich-quick scheme concocted by greedy lawyers that prompted the states to pursue Big Tobacco in court. The impetus was a failure of democracy, and the outcome has been both democratic and healthy.
I'm not sure why Cocco thinks replacing legislation debated and passed by elected representatives with back-room deals hammered out by self-interested trial lawyers enhances democracy. Isn't the usual lawmaking process bad enough?