 |
SETTLEMENT SMOKE AND MIRROR
By Julie DeFalco
October 1997
The global tobacco settlement, which has been in the news all summer, is a particularly good example of legalized extortion. Concocted in a (smoke-free?) back room by a noxious combination of politicians, trial lawyers, tobacco lobbyists, and assorted hangers-on, the settlement requires tobacco companies to pay hundreds of millions of dollars to state coffers, anti-smoking groups, and lawyers on both sides in exchange for protection from lawsuits. Congress will consider this settlement and may make it the law of the land.
There are numerous reasons why the settlement is a terrible idea. For one, it codifies the silly idea that people are unaware of the risks of smoking, and that they are helpless to stop. Everyone has known about the risks of smoking for decades. Quitting is hard, but not impossible. Forty-eight million Americans have quit smoking and, according to the Centers for Disease Control, 90 percent did it without extra help.
The settlement is also an affront to the First Amendment (although admittedly, this is nothing new in the area of commercial speech). As part of the settlement, the tobacco companies have given up practically all of their rights to advertise and promote their still-legal products, except in very limited circumstances. This cession was nominally voluntary. Yet the tobacco companies agreed to this provision under pressure from federal agencies, Congress, and state lawsuits. The relinquishing of a fundamental right at the barrel of a gun is hardly voluntary.
These advertising limits also buy into the notion that advertising makes people smoke, especially teenagers. Lost in the outrage over the cartoon figure Joe Camel was the fact that the greatest influence on teens is their parents’ and friends’ smoking habits, not advertising.
It is widely unappreciated how little hard evidence the Food and Drug Administration (FDA) – and everyone else – has on the correlation between advertising and smoking. Indeed, in its final rule issued in August 1996, the FDA admitted: "It is not necessary for FDA to establish by empirical evidence that advertising actually causes underage individuals to smoke or that restrictions on advertising will directly result in individuals who are under 18 ceasing to use cigarettes or smokeless tobacco. It is not necessary [for legal purposes] to prove conclusively that the correlation in fact exists or that the steps undertaken will completely solve the problem."
Finally, not only will this settlement not improve the health of Americans, it will likely worsen it. One key part of the settlement gives the FDA the right to impose a cap on the amount of nicotine in cigarettes. In this way, the FDA can supposedly wean smokers off cigarettes by lowering the cap every year.
But people do not generally smoke a certain number of cigarettes. They smoke a certain amount of nicotine. Thus, by forcing smokers to smoke more cigarettes to get the same "kick," the settlement will, ironically, expose smokers to more toxins. Even Consumer Reports recognized this situation. In 1983, Consumer Reports approvingly quoted the National Academy of Sciences’ conclusion that cigarettes low in tar, but high in nicotine "could result in the smoking of fewer cigarettes and perhaps less intensive puffing by nicotine-seeking smokers, so that the persistent smoker might receive less exposure to most of the other hazardous constituents in cigarettes."
There are many other offensive provisions to the settlement, but there is also one that has some merit – the limitation on the liability of tobacco companies. Though this section is vehemently attacked by anti-smokers as "special treatment," it reinforces the idea that cigarettes are not defective products, but that smoking is a risky activity that people engage in voluntarily. Despite the tobacco companies’ duplicity in hiding the health risks of smoking, people have had more than adequate information on this issue for decades. Smokers willingly accept these risks every time they light up.
It is instructive to look at how some states have been handling similar situations. Increased litigation on the local level has led directly to an increase in insurance costs for cities and private parties which provide recreational areas. Shuttered playgrounds, off-limits high diving boards, and closed dirt bike trails are a testament to this process. In response, many states have enacted laws which limit the liability of those who provide the means for individuals to pursue risky activities.
For example, Massachusetts and New Hampshire limit the liability of pick-your-own-produce farms, which witnessed an increase in the cost of insurance for family farmers just as their popularity was increasing. These laws limit the ability of individuals to sue for injuries resulting from the farm’s natural environment.
Similar laws deal with animals, from showing a horse to sponsoring equestrian activities, to performing veterinary medicine. More than 20 states limit the civil liability for horse and horse farm owners because of the inherent unpredictability of these animals. Kentucky, Kansas, and Montana, among others, extend this to cover "farm animal activities" in general, and Colorado and Georgia specifically include "llama activities" in their state codes.
Some dangerous but fun activities are protected as well. Every skier knows of the possible risks inherent in skiing – banging into trees, skidding on ice, colliding with other skiers. Expensive injuries and lawsuits resulting from ski accidents led insurance costs to rise to the point where carriers were unwilling to insure ski resorts. For these reasons, the state of Utah passed a law in 1979 which stated that "no skier may make any claim against, or recover from, any ski area operator for injury resulting from any of the inherent risks of skiing." At least ten other states have similar laws on the books.
Three states also limit the liability of roller rink owners, for, as Georgia’s "Rollerskating Safety Act" notes, anyone entering a rink "accepts the risks that are inherent" to rollerskating. Montana and New Hampshire note the risks inherent in snowmobiling and off-highway vehicles. Nevada states that everybody above the age of 13, "shall be deemed to have knowledge of and assume the inherent risks of an amusement park ride."
Because simply watching an activity can be risky, a 1993 addition to a Colorado state law, the "Baseball Spectator Safety Act," limits the civil liability of professional baseball team owners. It is assumed that people going to a game understand that they may be hit by a foul ball.
Some of these examples seem so obvious that it’s hard to believe that such laws need to exist. These are all common recreational activities. Despite its risks, many adults find smoking to be a fun, recreational activity for many adults. Anti-smokers’ encouragement of lawsuits against an industry selling a legal, if dangerous, product is nothing more than an intellectually dishonest attempt to ban cigarettes surreptitiously. Just as we rely on good sense instead of trial lawyers when it comes to skiing and horses, so it should be for smoking.
Julie DeFalco (defalco@cei.org) is a policy analyst at CEI.
