Tobacco target of extortion

By Robert A. Levy

State policy toward "sin" products? Don't expect consistency - or even sense.

Experts disagree about marijuana's harm, but states jail you for using it. Gambling destroys families, but state lotteries promote it. Alcohol leads to child abuse, spousal abuse and automobile fatalities, but states sell liquor. Smoking poses little danger to family members - indeed, smokers themselves live to an average age of 71 - yet states have gone to war against tobacco. Meanwhile, those same states support federal tobacco subsidies, invest their pension assets in tobacco stocks, and even manufacture cigarettes for distribution to prisoners.

Does any of that make sense? It does if you understand that money drives the tobacco wars. That's why 40 state attorneys general have asked their legislatures or their courts to ignore centuries-old common law principles to pick the pockets of a friendless industry.

Under the new legal regime, applied retroactively, tobacco companies can no longer claim that smokers are responsible for their own behavior. And states don't have to demonstrate any link between a Medicaid recipient's illness and his use of tobacco products. Those rules are different if the smoker isn't on Medicaid. Go figure.

The upshot is outright extortion, camouflaged as a "settlement," based on this simple, if repugnant, doctrine: The industry has money; the states need money; ergo, companies pay; states collect. To make matters worse, studies show that smokers already disgorge more in excise taxes than the public lays out for tobacco-related diseases.

That won't stop the attorneys general, who are bent on replenishing their depleted Medicaid coffers. As a result, 44 million adult smokers of a perfectly legal product will be asked to fork up because some retailers and parents, and 1 million kids, violate laws against tobacco sales to minors, which are on the books in every state.

The remedies are simple: Enforce those laws, and let parents know when their kids are caught smoking. Most of all, remind our attorneys general that the rule of law is the bedrock of civil society. When it gets perverted - especially by those we entrust with its enforcement - we're all at risk.

If the state can prove that a Medicaid recipient relied on industry misrepresentations and became addicted before age 18, it is entitled to recover smoking-related health costs. But once teen-agers become adults - who may go to war, vote, marry, get divorced and have abortions - they are responsible for the consequences of their conduct.

Robert A. Levy is a senior fellow in constitutional studies at the Cato Institute.

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