Conspiracy Theory

The tobacco companies conspired to misrepresent the hazards of smoking, suppress scientific evidence, and undermine health warnings, all with the intent of falsely reassuring their customers. They relentlessly criticized reports incriminating tobacco as a cause of disease while pretending that they were aggressively seeking the truth.

They steered industry money away from research that might confirm tobacco's hazards, including research on safer cigarettes. Meanwhile, industry employees privately conceded the dangers of smoking.

These charges should sound familiar, because they are central to the lawsuit that the U.S. Department of Justice recently filed against the six leading tobacco companies, seeking reimbursement for the cost of treating smoking-related illnesses under federal health programs. But the same allegations were made in Cipollone v. Liggett Group, a private lawsuit filed 16 years ago.

What are we to make, then, of the assertion that the Justice Department is suing the tobacco industry because of evidence that has come to light only recently? At the press conference where the federal suit was announced, Assistant Attorney General David Ogden said, "We have a history of 45 years that's been revealed…just over the last few years."

That might come as a surprise to Marc Edell, the attorney who represented Rose Cipollone. With Edell's help, she and her husband filed suit against Liggett, Philip Morris, and Lorillard in 1983, the year before she died of lung cancer.

The jurors in the Cipollone case concluded that Liggett had not provided adequate warnings prior to 1966 (when government warnings started appearing on cigarette packages) and that its advertisements in the 1950s had offered what amounted to a guarantee of safety. They told Liggett to pay Rose's husband $400,000 (a verdict that was overturned on appeal).

On the other hand, the jurors did not buy Edell's conspiracy theory, and they did not award any damages in Rose's name. They found that, regardless of what the tobacco companies had said, she knew smoking was risky but chose to do it away.

Edell had access to hundreds of thousands of industry documents. Many more have since come to light, largely as a result of the state lawsuits that demanded compensation from the tobacco companies for smoking-related Medicaid expenses. But the basic story of the industry's behavior remains the same, and so does the main objection to any case based on it: So what?

As one reporter boldly pointed out at the Justice Department press conference, "the industry in the last couple of decades hasn't fooled anybody." If no one was fooled by the industry's frequently expressed doubts about the hazards and addictiveness of cigarettes--and given the anti-smoking messages that have saturated our culture since the 1960s, it's hard to see how anyone could have been--the government has no case.

"Members of the public believed in the truth and completeness of the statements made by defendants and their co-conspirators," the Justice Department's complaint asserts. "They relied upon the statements." Yet the government has not named a single individual who was duped, perhaps because anyone so clueless is too embarrassed to come forward.

The lack of such evidence is not the only obstacle the Justice Department faces. The statutory basis for bringing this sort of suit is so weak that the department initially decided it was not a viable option. In April 1997, Attorney General Janet Reno told the Senate Judiciary Committee that "the federal government does not have an independent cause of action."

Reno now claims she was talking about Medicaid. Yet the transcript of her testimony shows that she was responding to a question about Medicare and other programs funded exclusively by the federal government. Insiders have confirmed that DOJ attorneys, including the head of the Civil Division at the time, considered a federal tobacco suit legally unsound.

But after seeing how the cigarette companies capitulated in response to state lawsuits based on theories that ranged from shaky to preposterous, the Clinton administration decided it didn't need a cause of action. The president announced in January that there would be a federal suit after all, so the DOJ had to come up with a rationale.

Now Reno wants to pretend there was no reversal, that the suit is based not on political considerations but "on the evidence and the law." If you believe that, you probably also believe that cigarettes are safe--in which case the Justice Department desperately needs to hear from you.