Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: THURSDAY, January 20, 1994 TAG: 9401210001
SECTION: EDITORIAL PAGE: A11 EDITION: METRO
SOURCE: ELIZABETH M. WHELAN
DATELINE: LENGTH: Long
Now, 30 years later, more than 25 percent of Americans are still regularly smoking cigarettes, recent surveys indicate that smoking is again on the rise, and we have a staggering annual cigarette-induced death toll of 500,000. Isn't it time to acknowledge that our current policies to curb smoking simply are not working?
On this 30th anniversary, perhaps the U.S. Congress should order the formation of a new commission - one that would consider more innovative and effective approaches to solving our nation's pandemic of cigarette-related disease. One new strategy the new commission should consider is removing the government warning label on cigarette packages.
The warning labels, while presumably well-intentioned, have done nothing to discourage smoking, but have provided extraordinary legal protection for the tobacco industry.
I know that sounds odd. But consider this: During the mid-1960s, when the hazards of smoking finally became undeniable to policy makers - nearly 30 years after the scientific community had reached consensus on the issue - public-health activists and the tobacco industry both lobbied Congress for warning labels. Health advocates thought they were "doing good." The industry acted to ensure survival - first because, as more states proposed different warning labels, the potential for chaos in interstate commerce was a looming nightmare. Better to have a single standard label, they reasoned.
But there was a second reason as well: By agreeing to the labels, the industry figured it was buying immunity from the lawsuits that would be brought by the families of people who became ill and died from smoking cigarettes.
In other words, as a direct result of the 1965 congressionally mandated "health" label (which was extended to include advertisements in 1969), the industry was given a unique and privileged legal status, a teflon coating protecting it from liability claims. As a result, the cigarette industry has never paid a cent in liability damages.
Indeed, in 1992 the Supreme Court agreed that the government warning label pre-empts lawsuits - although it did leave a window open if an industry disinformation conspiracy could be established.
The threat of litigation is a clear and powerful incentive for an industry to keep its products safe - or to be very, very specific about the dangers associated with their use. Given their congressionally bestowed litigation shield, however, cigarette manufacturers have no incentive to be honest about the consequences of smoking and apparently have unlimited freedom to peddle their crippling and killing products.
For example: Despite 60,000 medical citations to the contrary, industry spokesmen continue to maintain that there is no evidence smoking adversely affects health. In November 1993, during sworn pretrial testimony in a Miami lawsuit, Michael Rosenbaum, vice president of the holding company that owns Liggett Group Inc. - manufacturer of Chesterfield, L&M and other cigarette brands - responded this way when asked if cigarettes cause cancer: "I'm not a medical doctor. I don't have a clue."
Tobacco companies spend $4 billion annually to promote cigarettes as healthy, invigorating and part of the good life, a clear distortion of the grim medical realities. Only an industry that perceives itself as immune from lawsuits would have the gall to offer "free" designer clothing (Virginia Slims attire, fashions any young woman would just die for) in return for proof of purchase of 975 packs of cigarettes in a six-month period - a consumption rate in excess of five packs per day. Would a liquor company get away with enticing consumers to purchase five fifths of booze a day?
Advocates for tobacco control frequently contend that the solution to our nation's pandemic of cigarette-related diseases - now accounting for one in four deaths annually - is more government intervention: a ban on advertising, an increase in the excise tax, restrictions on smoking in public places.
But the real solution lies in the opposite direction, because if government had not meddled in the first place, cigarette companies would conduct business on the same legal turf as every other industry. They would have been sued by smokers made ill by their deadly products and by the loved ones of people who had died from their use. The industry would have paid, and paid big, because it markets an inherently hazardous product without full disclosure.
If Congress had not legislated the label and the legal immunity it spawned, cigarettes might still be available, but the industry would be totally forthright about risks and might even require written, informed consent from smokers as a means of protecting itself against further liability.
If free market forces and an unfettered judicial system had prevailed, the cigarette might now be an anachronism, simply because it would be too expensive to buy and too unprofitable to produce.
\ Elizabeth M. Whelan, M.D., is president of the American Council on Science and Health.
by CNB