By Frederic W. Grannis Jr. MD
Our society is currently on the cusp of a critical decision; i.e. whether or not to pass through Congress a $368 billion agreement, misnamed "the global settlement", reached between a group of state attorney-generals, private litigators and the tobacco industry.
Passage of this "settlement" into law would be a public health disaster of the highest magnitude. Some background is essential.
or "I'm gonna make him an offer he can't refuse." Don Corleone
The medical-scientific community has known, for at least fifty years, with a high degree of certainty, that tobacco smoking and chewing causes cancer of the lung and many other organs as well as a number of other diseases including coronary artery disease, which in combination, result in an enormous mortality and morbidity in our society. To be more specific, it is well documented that approximately 480,000 Americans die prematurely each year from the effects of personal tobacco use and environmental exposure to tobacco smoke from the tobacco of others. Millions of other persons suffer pain and disability from these tobacco-caused illnesses.
Citizens in our society are generally well protected by a civil justice system that provides for payment of damages caused by consumer products found to be defective or dangerous in a court of law.
Despite the widely disseminated information on the dangerous nature of cigarettes, the tobacco industry has been highly successful in avoiding regulatory legislation and adverse product liability judgments. They have maintained this immunity behind an impenetrable shield of highly paid lawyers, lobbyists and compliant politicians, whose reelection coffers are kept well stocked by tobacco PACs and "soft" money. More than 75% of federal senators and representatives, now in office, have taken money from tobacco PACs. Any meaningful tobacco control legislation in federal or state legislatures has failed, with a very high correlation between a pro-tobacco industry voting record and increasing amounts of money that a politician has accepted from tobacco industry sources.
Personal injury product liability suits have uniformly failed, because tobacco industry legal teams have kept cases tied up in court for long periods of time, exhausting the time and resources of plaintiffs and bankrupting their attorneys. In the few cases that actually reached a courtroom, they have been able to convince juries that the plaintiffs had freely chosen to use the tobacco product and were personally to blame for their own health problems.
The industry steadfastly maintained that there was no convincing evidence that their products caused any human disease, nor was their product addictive. These defensive bulwarks have now been outflanked and the monolithic rampart is breached and crumbling under innovative new legal and regulative assaults. The reasons for this success are as follows.
Industry whistleblowers have leaked documents to public health experts, which make it eminently clear that the tobacco industry has known for decades that their products were both addictive and caused human diseases, including cancer. Furthermore, they have conspired, and continue to conspire, to cover-up this information, and to discredit scientists who try to publish factual information concerning the dangers of tobacco use. The tobacco companies have been largely unsuccessful in suppressing public dissemination of these revelations.
Faced with these public disclosures, one of the companies, Liggett Corporation, rolled over and "ratted out" the others, admitting past misdeeds and turning over documents to attorney generals which implicate the other tobacco companies in cover-up and conspiracy.
In another arena, the FDA, under Commissioner David Kessler, took the activist stance that tobacco products were drug delivery systems for nicotine, and should therefore fall under the jurisdiction of all of the pertinent FDA regulations. The President and even North Carolina judges backed this position.
There was also a growing realization that the financial impact of tobacco use on federal, state and local health agencies was staggering; the total cost to our society of tobacco products is in the range of $100 billion/year.
Armed with all of this new data and evidence, state, county and city attorney generals from more than 50 jurisdictions have brought suits against the tobacco industry. to recover the health care expense money spent for the treatment of patients with diseases caused by tobacco use, and thereby lost to local governments. Many of these suits also seek punitive and even criminal convictions under RICO laws, because of alleged conspiracy, cover-up and fraud by industry officials and attorneys. The stakes are enormous. If the state of Texas wins it's suit, it could cost the tobacco companies as much as $42 billion. Private attorneys have also used new information regarding the addictiveness of tobacco and the dangers of environmental tobacco smoke to bring multiple huge class action suits against the industry. For example, A Pennsylvania judge has recently certified a class of 2.1 million cigarette smokers in a suit revolving around nicotine addiction.
The smug arrogance of the tobacco industry has quickly wilted under these attacks. Just before the first state suit, brought by attorney general Mike Moore in Mississippi, came to trial, the industry caved in and reached a so-called "global settlement" with a group of attorney generals, private attorneys and a small group of tobacco activists including the Campaign for Tobacco-Free Kids. By the settlement, the tobacco industry agreed to pay the staggering amount of $368 billion over a period of twenty five years (approximately $15 billion/year) to settle with our society for the damage they have done. Furthermore, the industry made a limited admission that their products caused human disease.
or "The large print giveth and the small print taketh away." Tom Waits
The jubilation incumbent on this remarkable victory for the forces of public health, was quickly tempered however by the dire warnings issued by nearly all of the experienced public health experts, who had been experienced in dealing with tobacco industry perfidy, for decades. They pointed out that a careful reading of the fine print of the "global settlement" showed that it was more of a "tobacco industry protection deal" (TIPD) than a "settlement". First, much of the $368 billion bill would be passed on to the federal and state governments, as tobacco companies claimed their TIPD expenditures as tax-deductible business loses. Estimates indicate that as much as $100 billion would be passed on to tax-payers in this manner. Next, Republican leaders Newt Gingrich and Trent Lott added a 46 word amendment onto a an unrelated bill, in effect, subtracting $50 billion from the settlement, following passage of a recent law increasing tobacco taxes to pay for health care to indigent children (Kennedy-Kassabaum). These subtractions cut the payments down to $8.7 billion/year. Later, the Senate and House, stung by public outrage over this cynical billion-dollar-per-word giveaway, overwhelmingly voted to repeal this amendment. Further fine print would allow the tobacco cartel to recoup more of the TIPD losses in the category of fines levied for failure to reach targeted reductions in youth smoking rates. The tobacco industry would be allowed, indeed encouraged to increase prices. This would bring about a small reduction in the number of smokers but could be expected to actually bring about an increased profitability of tobacco companies! The stock market resoundingly agreed with this assessment, as sagging tobacco stock prices surged upward after the announcement of the "global", Mississippi and Florida settlements. The TIPD fine print also contains numerous provisions that would undercut the ability of the FDA to regulate tobacco products, and delay removal of carcinogens and nicotine from cigarettes for decades. For the first time, a tobacco executive admitted that cigarettes "may have killed as many as 100 thousand people" (100 million is closer to the correct figure). This admission of the disease causation of tobacco would not apply outside of the United States, and tobacco could continue to be marketed outside of the USA, at enormous profit, without new restrictions. Thus, while we might provide some measure of protection to our own young people, children in other countries would remain fair game, to predatory cigarette company marketing. Most important, tobacco control would give up the most potent weapons in it's arsenal, the very weapons with which it had won the battle, in that governmental suits and class action suits would no longer be permitted. Individual suits could continue, but with crippling restrictions placed on evidence. A critical spin-off from this change would be loss of the legal process that has forced the tobacco industry to release hidden documents about it's prior research and duplicitous and illegal activities. The overwhelming majority of public health and tobacco control advocates including Everett Koop, David Kessler, Ralph Nader, Joseph Califano and Stanton Glantz among many others, agree that acceptance of these TIPD provisions into law, by Congress, would save the tobacco industry from it's current precarious predicament, and allow it to maintain it's survival, profitability and predation for many years to come.. More dangerous, TIPD would allow the American tobacco industry to continue the expansion of it's sales outside of the US, with consequent disastrous results internationally. Tobacco experts worldwide agree that the TIPD is bad for public health. The 10th World Conference on Tobacco and Health in Beijing held earlier this year adopted the following resolutions on the international implications of domestic tobacco control measures. "The Conference recommends governments consider the international implications of tobacco control policies or settlements with the tobacco industry, and to ensure that: a. such measures do not contribute to an increase in the worldwide epidemic of tobacco-related death and disease; b. the legal rights of those not party to any agreement or policy are fully protected; c. such measures do not inhibit full public scrutiny of the past, present and future activities of the tobacco industry and; d. that the tobacco industry pay the costs of damage caused by tobacco." The proposed TIPD clearly violates all of these principles. It is "global" only in the sense the rest of the world gets screwed. Although the industry would give up it's famous icons Joe the Camel, and the Marlboro man, there is no doubt that the resourcefulness of the advertising industry will quickly recoup any loss in this area with new advertising strategies, as they have done in other countries. Indeed, within weeks, a new Winston "naked" billboard ad blitz appeared. Although the cost of TIPD to the tobacco industry would be enormous, the specter of complete destruction or evisceration would be removed. With price increases, creative marketing and further cultivation of political toadies, the industry would, as usual, be back in the drivers seat within a short time. While tobacco control activists have continued to maintain that TIPD is a very bad deal for the American and world public, there are enormous pressures to make it law. The lawyers who's creative strategy against the industry resulted in the "settlement" are in favor because they will reap enormous financial rewards. Florida attorneys have presented a bill for $1.4 billion in that one settlement alone! The attorney generals will gain tremendous political coin. The president would have a lasting public health legacy linked to his name. The senators and representatives will get a reinfusion of PAC and "soft" money; indeed the past few months have witnessed a drastically increased amount of PAC and "soft" money, particularly to the Republican party. State and local governments will get a windfall, that will undoubtedly be quickly siphoned away from tobacco control expenditures, as has happened in the state of California.
It is now estimated, that yearly mortality attributable to tobacco will reach 10 million by the year 2025, unless effective tobacco control measures are taken now. This extrapolates to 100 million deaths per decade and one billion tobacco-caused deaths during the next century! I hope that it is clear to the reader, from the information provided above, that the proposed "global settlement" is largely flimflam and would provide grossly inadequate remedies to prevent the coming catastrophe.
On September 18, 1997 President Clinton announced that he could not support the TIPD as is, and urged that revisions be made in a number of critical areas. He left open the question of whether he would support limitations on liability suits if the other issues were satisfactorily addressed.
I urge all persons who are interested in promoting the public and global health, and in reducing the terrible morbidity and mortality secondary to lung cancer and other tobacco-caused diseases, to write to President Clinton thanking him for his wise decision and urging him to stand fast against limitations on FDA regulationand tobacco industry liability.
I also urge you to write to your Senator and Representative, advising them not to attempt passage of this misguided "Tobacco Industry Protection Deal" into law. Further, ask them to pledge not to accept financial PAC contributions or "soft" money from the tobacco industry in the future.
The Internet represents a powerful force in the interests of citizen participation in our democracy.
You can quickly and easily send a letter to the President with the help of an EZ Letter at SmokeScreen on the World Wide Web URL http://www.smokescreen.org/.
You can search to find out whether your Senator or Representative takes tobacco money at Common Cause: Know Your Congress, at URLhttp://www.commoncause.org/forms/profile.html. Once there, simply enter the name of the politician in question and then "Follow the Dollar". You can quickly and easily send him an E-mail at the same site. (Information current up through 1996).
The following members of the current U.S. Congress have signed the following pledge. Ask your Senator and Representative to do so.
"A Promise To My Constituents: I promise that I will not accept financial contributions from any tobacco company, executive, subsidiary, or tobacco-related organization or PAC"
REPRESENTATIVES: Baldacci, John D ME, Campbell, Tom R CA, DeFazio, Peter D OR, Doggett, Lloyd D TX, Eschoo, Anna G. D CA, Foglietta, Thomas D PA, Frank, Barney D MA, Furse, Elizabeth D OR, Gekas, George R PA, Gilman, Ben R NY, Gutiernaz, Luis V. D IL, Hansen, James R UT, Harman, Jane D CA, Hinchey, Maurice D. D NY, Horn, Steve R CA, Largent, Steve R OK, Leach, Jim R IA, Lofgren, Zoe D CA, Mascara, Frank D PA, McDermott, Jim D WA, McHale, Paul D PA, McInnis, Scott R CO, McKeon, Howard R CA, Meehan, Martin I D MA, Moaakley, John Joseph D MA, Moran, Jim D VA, Morella, Constance R MD, Olver, John D MA, Payane, Donald D NJ, Pelosi, Nancy D CA, Poshard, Glenn D IL, Rivers, Lynn D MI, Roukema, Marge R NJ, Roybal-Allard, Lucille D CA, Skaggs, David D CO, Smith, Linda R WA, Smith, Nick R MI, Stark, Fortney "Pete" D CA, Waxman, Henry D CA, Wise, Robert D WV, Yates, Sidney D IL.
SENATORS Feingold, Russell D. D WI, Harkin, Tom D IA , Kohl, Hereb D WI, Wellstone, Paul David D MN
Another place to obtain this information and E-mail federal politicians is at "The Best Congress Money Can Buy" from Mother Jones magazine at URL http://www.motherjones.com/coinop_congress/data_viewer/data_viewer.htm l. (Information current through 1994.)
The author gratefully acknowledges the ideas, help and support given to him by the participants in the Internet "Settlement-talk" group established by Michael Tacelosky and Unit...@aol.com , including but not limited to documents prepared by Stanton Glantz, William T. Godshall, Phil Brammer, Joseph A. Califano Jr., Ralph Nader and many other public health experts and anti-tobacco activists.
For those seeking more information on this topic, a comprehensive critique of the TIPD by Stanton Glantz and his colleagues at the University of California, San Francisco, can be found on the Internet at http://www.tobacco.org/Misc/9708glantzanalysis.html
The full text of the Tobacco Industry Protection Deal can be found, courtesy of Jack Cannon, at http://www.gate.net/~jcannon/documents/settle.txt.
Citizens seeking to more actively participate in this process can make a good start at Smoke Screen Action Network URL http://www.smokescreen.org/login/vhome.cfm
This public health problem could never have arisen without the corruption of our elected officials, by large campaign contributions from special interest political action committees. For more information on this problem, as well as practical solutions, start at Common Cause which can be reached at URL http://www.commoncause.org/index.html