This Settlement Could Be Hazardous to Your Health

For years, the American tobacco industry made legal mincemeat out of anyone who tried to take them to court, whether an individual seeking to gain compensation for the harmful effects of smoking or a government agency seeking to prove that smoking kills people, that nicotine addicts people to smoking and that the tobacco industry has known this all along. Until recently, Big Tobacco was able to boast that the industry had never lost a significant court case. And, with the ability to control colossal advertising budgets, tobacco interests also had been singularly successful in forcing the purportedly fearless American news media to keep its collective head down when it came to producing hard-hitting investigative stories about corporations with addresses in places like Winston-Salem, NC.All that changed, however, on the last day of spring, 1997, when a preliminary out-of-court settlement was agreed to among the five major tobacco companies and a consortium of seven state attorneys general, each of whom (including the Voinovich administration's Betty Montgomery) had filed virtually identical lawsuits against the tobacco industry seeking restitution for the billions of dollars in state Medicaid expenses caused by smoking-related diseases.Promising to "mandate a total reformation and restructuring of how tobacco products are manufactured, marketed and distributed in this country," the settlement offers new, tougher ground rules for cigarette advertising, specifies billions of dollars in restitution payments if mandated goals for tobacco-funded programs to reduce underage smoking are not met, calls for tobacco companies to develop and market safer products and stipulates various other measures that would appear to have such a sweeping impact on the tobacco industry that many stood and nodded their assent when Mississippi's Michael Moore, who led his fellow attorneys general in the negotiations, declared the settlement "the most historic public health achievement in history." Even the top executives of the once-impregnable tobacco industry called the settlement "a bitter pill to swallow."Yet, less than three weeks later, the settlement is being roundly assailed by health care officials, activists, attorneys and politicians as a premature bail-out of the tobacco industry that allows cigarette makers to cut their losses, control their future liability exposure and to expand with impunity their presence in international markets. And, while cigarette stocks soared, huge cracks began appearing in the solidarity of the legal "Dream Team" whose lawsuit had forced the tobacco industry to cry uncle. When Mississippi settled its Medicaid lawsuit separately this week for $3.6 billion, "the most historic public health settlement in history" suddenly became an "every attorney general for himself" affair, and Michael Moore employs significantly less bravado in assessing the deal now than when he did so on June 20:"I have a huge hollow spot in my belly right now because we just haven't achieved the public-health changes from this industry that I know we can only get from Congress and the president," Moore told the New York Times this week. "We can't kill Joe Camel and the Marlboro Man with our cases."That equivocation is not likely to sit well with the many hard-line anti-tobacco activists who began to criticize Moore and his colleagues as soon as talk of a settlement became public. People like Ahron Leichtman of the Cincinnati-based Citizens for A Tobacco-free Society (CATS) are quick to point out, for instance, that the original Marlboro Man is already dead. His name was Wayne McLaren and he became an anti-smoking crusader before dying in 1992 of lung cancer at the age of 51.Reading the fine print As it happens, the state attorneys generals' lawsuit fully describes the role played by McLaren's rugged, wild-spirited persona in helping boost Marlboro's market share to a point at which parent company Philip Morris vaulted past Reynolds to dominate the industry -- and to succeed in getting almost three-fourths of teenage smokers hooked on Marlboros. You can find it all on p. 104 of Ohio's version of the lawsuit, followed by a narration of the strategies Reynolds undertook to recoup (i.e., targeting the "health-conscious adult smoker" with brands like Vantage).In fact, the text of the "cookie-cutter" lawsuits filed by the state attorneys makes for a fascinating read -- and one surprisingly free of legalese and abstruse medical terminology. Rather, the lawsuit is the eminently readable history of an industry that reveals clearly through its own internal documentation that it has always known more about the real physiological effects of its products than anyone else -- and that it has always known how to manipulate those products and that information to its unceasing advantage.To read these lawsuits is to trace the alleged evolution of an unprecedented collusion among cigarette makers, beginning with the first suggestions from the medical community of a link between smoking and cancer in the mid '40s.In 1953, Sloan-Kettering Institute researchers released studies of experiments with mice confirming the cancer-causing properties of cigarettes -- an event referred to in subsequent tobacco industry literature as "The Big Scare." The industry responded by hiring the world's largest PR firm, Hill & Knowlton (named as co-defendants in the lawsuit) to direct what the states allege was "The Big Conspiracy." Namely, a conspiracy to create pseudo-scientific "research" organizations whose real purpose was to create confusion and spread misinformation about the real health risks of smoking, and to manage competition within the industry so that companies' competing claims about the "health benefits" of various tobacco products did not arouse widespread concern that might discourage people from smoking.Meanwhile, the lawsuit alleges, the industry learned more and more about the importance of nicotine in addicting smokers to life-long -- and life-shortening -- cigarette consumption while it also perfected sophisticated techniques to increase and quantify the nicotine levels in its products.That strategy, the lawsuit makes clear, has been abundantly successful -- and its consequences have been catastrophic: "Every day, according to reputable studies, 3,000 American youths are enticed [to] start smoking ...In the latter half of the 20th century, some ten million Americans have been killed by cigarette disease ...in 1990, smoking-related illnesses cost US taxpayers a total of approximately $68 billion."And, the lawsuit charges, while raking in the billions, Big Tobacco carried on fearlessly with its Big Lies. In 1997, perhaps, few would be shocked to read allegations that tobacco executives knew long ago that their products caused cancer, emphysema and heart disease, even as they continued to deny it publicly. But many eyebrows would be raised by the lawsuit's documented allegations that the industry not only possesses the know-how to make a much safer cigarette, it already has produced cigarettes that present virtually no lethal health risks -- but has chosen to withhold that product and to conceal its existence lest it provide unpleasant implications regarding the industry's long history of pushing more punishing smokes.And how many parents would view with equanimity the evidence in these lawsuits that, for more than 20 years, the tobacco industry has been conducting sophisticated studies of school children as early as the third grade, trying to understand precisely how certain properties of nicotine that mirror the effects of drugs used to control hyperactivity in children might be used to target kids with those susceptibilities and make it more likely they would eventually become smokers? After all, when 400,000 of your customers die each year due to causes associated with your product, you have to find new blood somewhere or go out of business.Blow it up Out of business, of course, is precisely where Leichtman and other activists want to put the tobacco industry. Their rage over what they regard as the "lawyers' sell-out" [see sidebar] stems in part from contempt for some of the settlement terms (they charge, for instance, that the FDA actually would have less authority to regulate nicotine than before the settlement), and partly from their conviction that the lawsuit presents such a strong case -- and does so in such dramatic terms -- that a full-blown courtroom trial based on its content would have stripped Big Tobacco of its every subterfuge and would have revealed once and for all to a newly informed, bitterly enraged public the true nature of its practices.Ironically, that goal may be further out of reach now than ever before. But that won't keep people like Ahron Leichtman from trying to get there. Leichtman's two decades of accomplishments as an indefatigable volunteer in the "information war" against tobacco interests include his acquisition of the story rights for another of the industry's human idols whose health has been destroyed by following the message conveyed by his character -- Alan Landers, aka the "Winston Man."Leichtman says he could paint a scenario drawn from the mountains of information he and other activists have compiled that might give rise to the kind of public rage that led one California-based attorney to comment,"Do I want a seat at the [negotiating] table? No, I want to blow up the table!"Of the settlement, by the settlement and against the settlement"Our industry is based upon design, manufacture and sale of attractive dosage forms of nicotine." -- 1972 statement by RJR Nabisco's Claude Teague, cited in lawsuit brought by state attorneys general"We wonder whether such children may not eventually become cigarette smokers in their teenage years as they discover the advantage of self-stimulation via nicotine. We have already collaborated with a local school system in identifying some such children in the third grade." -- 1974 statement by Philip Morris "researchers," cited in AG lawsuit"To survive and prosper, we must get our share of the youth market." --1973 internal memo by RJR's Teague, reflecting one tobacco industry response to the fact that 400,000 of its customers die annually from smoking-related diseases."Now is not the time to settle with the tobacco industry. Every day brings new revelations about the scope of the industry's conspiracy." -- John R. Garrison, CEO, American Lung Association"We are confronted by an industry -- a drug cartel -- that has no integrity whatsoever, and until we can instill that fact into the political consciousness of the nation, all the advertising restrictions, tougher warning labels and medical reimbursements won't amount to a hill of beans" -- Berkeley, CA, attorney/activist Peter Hanauer"It is absurd and unacceptable to create a standard that is more burdensome on FDA authority on products as deadly as these. FDA's jurisdiction over tobacco products has been upheld by Federal Court decision. There is no logical basis for backtracking on that victory here, when what we really want is legislation which guarantees it." -- July 7 statement by American Cancer Society president Myles Cunningham, backtracking on his organization's initial support for the tobacco settlement"The Association of Trial Lawyers of America's (ATLA) board has declared that the association will not support any legislative settlement of tobacco litigation that: ...Allows the tobacco industry to escape full and fair responsibility for the harm its products have caused millions of Americans; ...Permits tobacco companies to shield or destroy records that may document their own culpability in a national public-health disaster that claims 400,000 lives and costs billions of tax dollars each year." -- July 7 statement by ATLA"Congress is open to the usual lobbying by the tobacco industry and they have always been very partial to the tobacco industry, so I think a tremendous number of things can be watered down in Congress which will not be good for the health of the American people." -- former US Surgeon General C. Everett Koop, speaking to CNN the day after the settlement"Given that the White House has been involved in facilitating or encouraging the tobacco settlement negotiations, and that you will be called on to make a decision in any such deal, your brother-in-law's involvement, especially in liaising with the White House, presents questions of ethics and special interests." -- June 17 letter from consumer advocate Ralph Nader to President Clinton, protesting Hugh Rodham's role in the tobacco settlement negotiations"Negotiations of this size create compromise, not perfection. No one side achieves everything it seeks. In this context, the proposal is a bitter pill. But on balance, this plan is preferable to the continuation of a decades-long struggle that has failed to produce a constructive outcome for anyone." -- June 20 statement on the settlement made jointly by Philip Morris Inc., R. J.. Reynolds Tobacco Co., Brown & Williamson Tobacco Corp., and Lorillard Tobacco Co.

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