Taming Big Tobacco

Here is what we have learned about the tobacco industry in recent months, thanks to document disclosures resulting from litigation:

— The RJR papers stemming from a California lawsuit conclusively demonstrated that R.J. Reynolds marketed cigarettes to children;

— Documents from Minnesota’s suit against Big Tobacco showed the industry doing market research on children as young as five;

— Philip Morris papers released as an outgrowth of the Minnesota case even show the aggressive company to have placed its product in Muppets’ movies.

How could anyone consider granting any special protections to an industry so mendacious and predatory as to engage in these practices?

Unfortunately, Senator John McCain is now recommending exactly that. His tobacco legislation would cap the industry’s annual liability at $6.5 billion and preempts state and local government suits against Big Tobacco.

This compromise of the civil justice system would undermine the very goals tobacco control legislation is designed to achieve.

The U.S. civil justice system functions as a crucial public health tool. It plays an essential role in securing document disclosure, spurring deterrence and, indirectly, generating media and Congressional attention, building political momentum against corporate misconduct, spawning criminal investigations and regulatory initiatives and unleashing civic energies.

The civil justice system is the very disciplinarian that put Big Tobacco on the defensive. Weakening it would relieve the pressure on tobacco — and serve as a precedent for every other wrongdoing industry, which would demand similar protections as those afforded to this, the worst industry.

There is no need to cap industry liability or make other concessions to Big Tobacco in order to pass broad anti-tobacco legislation. With the political temperature still rising on Capitol Hill, a united front by tobacco’s opponents could usher in comprehensive legislation without weakening the civil justice system.

But if broad legislation cannot be achieved without compromising civil justice exposure, then the cause of tobacco control and public health would be much better served by clean, focused tobacco legislation that preserves the civil justice system.

A package of a tobacco tax increase, affirmation of Food and Drug Administration authority over tobacco and international measures could help achieve significant reductions in smoking rates, without sacrificing the tools that brought the industry to its knees.

If civil justice responsibility is preserved and “comprehensive” legislation is not passed, the tobacco control effort will not grind to a halt after this legislative session closes. The state cases against the industry will proceed, securing billions of dollars from the industry and leading to the implementation of new public health measures, as each state’s public health innovations automatically redound to the benefit of others which included “most favored nation” clauses in prior settlement agreements with the industry.

New documents will come to light. State legislatures will increasingly impose new tobacco taxes and states and localities will adopt more smoke free regulations. Private litigation of all sorts — with the attendant discoveries and disclosures — will continue. Tobacco will become an issue in this November’s election. And when Congress reconvenes next year, with momentum still strong against the industry, it may be able to consider additional tobacco control measures.

A liability cap and broad preemption of state and local government suits, by way of contrast, will decompress the political climate, create a sense in which tobacco seems a “finished” issue and remove the litigation spur to media, public, legislative and regulatory focus on tobacco. The result will be to foreclose, or at least slow, future public health policy innovations. The history of efforts to tame Big Tobacco makes clear that this approach should be avoided at all costs.