March 31, 1997

Litigating our way toward a new Prohibition?

he analyst's British accent was so reassuring. Appearing on a morning TV business show, the tobacco industry analyst, whose name and firm I didn't catch, confidently predicted that tobacco firms would weather the brewing legal storm over their liability for the health hazards of cigarettes.

After all, the analyst intoned, the U.S. government warned more than three decades ago that cigarettes caused cancer and other ailments. His reasoning: How can tobacco companies be held liable for something that is legal, subsidized by the government and known for decades to be addictive and dangerous to people's health?

Mr. British Analyst, welcome to the United States, the world's most litigious nation.

Don't get me wrong: In my opinion, lawmakers should do everything possible to curtail the use of cigarettes, especially among the young. Raise taxes? Absolutely. Crack down on minors buying smokes? Definitely. Ban cigarette advertising aimed at children (a la Joe Camel)? Without question. Ban work place smoking? Yes, siree. And all of this from a person who, unfortunately, smokes (and wants to quit).

I believe more education and regulations are needed to reduce smoking--and I think these laws should be debated, voted upon and implemented by our elected leaders, pronto.

What I do object to, however, is litigating the issue of smoking, rather than legislating the issue, in a bizarre national soap opera that foreigners, like our dear British analyst, just can't figure out.

For the life of me, I'll never forget when those tobacco industry CEOs recently went before a congressional committee, lifted their hands in the air and swore to tell the truth, the whole truth and nothing but the truth--and then proceeded to say they didn't know anything about the dangers and addictiveness of cigarettes.

The entire nation guffawed in disbelief. It was great television.

To top it off, I'll also never forget who administered that oath to them: members of Congress who already knew the scientific answers to the questions they were asking; elected officials who voted to subsidize (and continue to subsidize) the tobacco industry with taxpayers' money; lawmakers who have long had the knowledge and power to take action but haven't for more than three decades.

Can you imagine dragging bank robbers before a congressional hearing and, in all seriousness, demanding they fess up about whether they thought robbing banks was bad? And then threatening them with perjury charges if they didn't tell the truth? As if we really needed bank robbers to admit robbing banks was bad before we could take action.

Yet, this is the logic we're following today in this strange crackdown on tobacco. We're throwing the legal onus on evil tobacco companies when we know full well they're simply supplying something we know is bad but have kept legal.

Why are we doing this? Because I think that, deep down, we all know that we're lurching toward a prohibition on cigarettes, but don't want to admit we're lurching toward a prohibition. We want to find a way to ban cigarettes, but know that an outright ban, like the 18th Amendment prohibition on alcohol, would be a total farce.

So, being Americans, we litigate it.

I know the attorneys general and activists fighting the tobacco industry will vehemently deny a prohibition is their goal. Maybe it's not. But I think that's the effect of all this legal wrangling--and we had better start thinking long and hard about where this is all headed before it becomes a de facto prohibition.

There's a part of me who wants a ban. Let's get this debate over with. Cigarettes are bad. Let's stop the sham of going after tobacco executives when we've always had it in our power to put a legal end to cigarettes.

But there's another part of me who's well aware of our last failed attempt to ban a popular vice: the 18th Amendment. I can already picture what it would be like if we ever banned smoking: mobs smuggling cigarettes across the Canadian and Mexican borders; new "smoke-easies"; overburdened police chasing down and, eventually, ignoring those who smoke or sell tobacco.

We're now talking about holding tobacco companies liable for hundreds of millions of dollars, if not billions of dollars, for selling cigarettes. We're talking about sending tobacco executives to jail for perjuring themselves before Congress when they denied they knew tobacco was addictive and harmful to humans. We're talking heavy duty stuff here.

At what point do these companies say it's simply not worth selling cigarettes in the United States? Isn't that what we're ultimately after?

I say: Vote up or down on a prohibition just to get it on the record.

If a prohibition passes, that's fine, but brace yourself for a new generation of Al Capones. If a prohibition fails, that's fine, too, but then at least we can start talking rationally about how to better regulate the industry.

JAY FITZGERALD is editor of the Boston Business Journal.

© 1997, Boston Business Journal