A Tobacco Industry Protection Deal misnamed "The Global
Settlement": a Giant Public Health Dilemma.
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.
Part 1: The Global Settlement
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.
Part 2 Settlement or Sell-out?
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.
Part 3: The Future: What to do about the proposed "Global
Settlement"?
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/alert/alertdet.cfm?id=153.
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 [email protected] , 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
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