Nanny State

What About 'Corrective Statements' for the Government?


Last week U.S. District Judge Gladys Kessler let the public see the Justice Department's proposed "corrective statements" in its racketeering lawsuit against the leading tobacco companies. The statements (PDF), which would appear in attachments to cigarette packages, in newspaper and magazine ads, and on point-of-sale signs, deal with four topics: the health hazards of smoking, the health hazards of exposure to secondhand smoke, the addictiveness of nicotine, and the purported health advantages of "light" cigarettes. But some of the corrections are incorrect, or at least highly debatable.

According to the DOJ, for example, "the scientific evidence indicates that there is no risk-free level of exposure to secondhand smoke." It would be accurate, though not very meaningful, to say that no safe level of exposure has been established. The same thing could be said of any toxin or carcinogen that in tiny, barely measurable amounts might cause damage so rare or imperceptible that it does not show up in epidemiological studies. But the same limitations that make it impossible to say with complete certainty that there is a safe level of exposure also make it impossible to conclude that there is not a safe level. The implication that the slightest whiff of tobacco smoke might prove fatal is misleading in the sense that no such risk has ever been demonstrated.

Two of the proposed statements claim that "when you smoke, the nicotine actually changes the brain," which is "why quitting is so hard." That assertion reflects a reductionist, drug-centered view of addiction that is inconsisent with much of what we know about smoking (that it's not just about the nicotine, for example, or that different people in different circumstances respond to the drug very differently). Given the complexity of the phenomenon, one might as well say that when you fall in love, the experience changes the brain, which is why breaking up is so hard.

The Justice Department's insistence that nicotine pharmacologically compels people to continue using it is ironic because the DOJ also faults the tobacco companies for clinging to the old-fashioned distinction between "habituating" drugs (such as nicotine and cocaine) and "addictive" drugs (such as heroin) long after the government had adopted a broader definition of "substance dependence." The current view focuses less on the inherent qualities of the substance and more on the pattern of behavior surrounding its use. But since the difficulty of giving up the tobacco habit has been a matter of common knowledge for centuries, it is unlikely that the industry's semantic games had much of an impact on consumer behavior.

Another target of the DOJ lawsuit, the misleading marketing of "light" cigarettes, comes closer to fraud. But as I've pointed out before, it's a fraud in which the government has been complicit all along. The tobacco companies began advertising tar and nicotine yields in 1971 under pressure from the Federal Trade Commission, which was threatening to mandate the use of these numbers. The FTC endorsed the method used to determine the yields, and it has only recently moved to reverse that policy in response to evidence that the numbers are unreliable. The basic problem, which the government has known about for decades, is that machines people do not smoke cigarettes the way that machines do. When people switch to "light" cigarettes, they tend to smoke more intensely (more puffs, deeper inhalation, etc.) to compensate for the lower nicotine yields. The upshot is that light cigarettes may not be any safer than "full-strength" cigarettes. In fact, since the tobacco companies generally reduced nicotine delivery along with tar, they  often increased smoke exposure for a given dose of nicotine.

A better approach would have been to raise nicotine delivery per puff, thereby reducing exposure to the toxins and carcinogens in cigarette smoke. (Electronic cigarettes, which deliver nicotine in a propylene glycol vapor, take this approach to its logical conclusion, completely eliminating combustion products.) Yet even while faulting the tobacco companies for failing to make cigarettes safer, which would have required changing the nicotine-to-tar ratio, the Justice Department criticizes them for secretly "manipulating" nicotine. "For decades," says one of the proposed corrective statements, "we denied that we controlled the level of nicotine delivered in cigarettes." But "the truth" is that "cigarettes are a finely-tuned nicotine delivery device designed to addict people….We control nicotine delivery to create and sustain smokers' addiction."

Although the tobacco companies have been maddeningly evasive on this point, anyone who gave the issue a moment's thought would have recognized that the way a cigarette is produced affects its nicotine delivery (which also depends on smokers' behavior). If the tobacco companies didn't control nicotine levels, how could they produce cigarettes with specified, machine-measured yields? In any event, what the DOJ portrays as a nefarious plot to hook customers—increasing or maintaining nicotine delivery while reducing exposure to combustion products—is also the only way to make tobacco products less dangerous.

Altria/Philip Morris, by the way, complains that the DOJ's corrective statements "go beyond factual and scientific information" by implying that cigarette makers lied to the public (saying, e.g., that they "falsely marketed" light cigarettes and that they "denied…the truth" about nicotine). "The Department of Justice proposal would compel the companies to admit wrongdoing under threat of contempt," says Murray Garnick, Altria's associate general counsel.  "Such a proposal is unprecedented in our legal system and would violate basic constitutional and statutory standards." Whatever the legal merits of that position, it's clear that the tobacco companies did lie to the public, though usually so transparently that the damage suffered by consumers was minimal to nonexistent. The tobacco myths promoted by the government are subtler and therefore more pernicious.