Tuesday, September 27, 2005

On FORCES' Third Commandment of Tobacco Control: Public Health Above Liberty

Gian Turci, CEO of FORCES International, in a column about my recent posts, has laid out what he perceives to be the 4 commandments of the tobacco control movement. The third commandment is quite interesting, and I think is worthy of some exploration and discussion:

"Public health is the paramount value of society. All other values - such as liberty, constitutionality, truth, economics, free enterprise, personal responsibility and moral integrity - are absolutely irrelevant and/or have to submit unconditionally. Any dissent from that credo only defines the enemy to be silenced."

The Rest of the Story

Well - it's sad to say, but in many ways, I agree.

The best example of this is the actions of a number of anti-smoking groups, led by the Campaign for Tobacco-Free Kids, the American Cancer Society, and the American Heart Association, to try to achieve public health gains by giving away the rights of American citizens to pursue justice by exercising their legal rights through the court system.

In 1997, these organizations, working as the ENACT coalition, lobbied for federal legislation (known as the global tobacco settlement) that would have achieved a number of anti-smoking goals (including a greatly increased federal cigarette excise tax, huge payments from the tobacco industry, restrictions on cigarette advertising, and FDA regulation of tobacco products).

Just one small problem. These public health gains could only be achieved by sacrificing the legal rights of American citizens to pursue justice in the courts. The legislation would have permanently curtailed the rights of smokers, for example, to meaningfully seek damages for wrongs they may have suffered.

Whether or not one agrees with the argument that smokers were deceived by tobacco industry statements about the safety of its products and that they are entitled to compensatory and punitive damages, it is quite well-established that smokers certainly have the right under our legal system to pursue justice by suing the tobacco companies for damages. Yet the above anti-smoking groups wanted to take away these basic legal rights from American citizens in order to achieve what these organizations viewed as being public health gains.

It was, then, precisely an example of anti-smoking organizations putting public health above all other values, including basic civil liberties and civil rights.

Perhaps the organizations did not view these legal rights as being irrelevant, but they certainly argued that these legal rights would have to submit unconditionally to the organizations' perceived value in achieving the federal tobacco settlement and its public health gains.

Fortunately, there were at least some anti-smoking groups that did not subscribe completely to the 3rd commandment, and they opposed the idea of sacrificing legal rights and civil liberties in order to achieve public health gains. A second coalition - SAVE LIVES - formed to oppose the idea of giving tobacco companies immunity from liability in order to achieve the settlement and its public health gains.

Nowhere is the view that public health concerns trump any and all concerns about liberty and civil rights demonstrated more vividly than in Michael Pertschuk's book: "Smoke in their Eyes: Lessons in Movement Leadership from the Tobacco Wars."

In the book, Pertschuk essentially argues that concerns about infringing upon the legal rights of American citizens to use the court system to pursue justice should not have played a significant role in determining public health groups' support for the global tobacco settlement, because the public health gains that would have accrued from that settlement completely trump concerns about the legal rights of citizens.

Perhaps the most telling quote in the book is from a veteran lobbyist from the American Cancer Society, who said: "I'm getting sick and tired of people who talk about immunity as though it is the only important issue on the table. What bugs me most is that you never hear any of them talking about the public health parts of the legislation and how they could be strengthened. It's just, 'No immunity, no immunity, no immunity.' I'd rather be talking about raising the federal excise tax and pricing cigarettes beyond what has been proposed, strengthening the minors' access provisions and possibly going further on advertising and marketing. These are the things that will save lives and prevent suffering. These are the things I'm prepared to ruin the current deal and any legislation over. Instead, they just prattle on solely about immunity."

This, I believe, quite accurately characterizes the view of the Campaign for Tobacco-Free Kids, ACS, and AHA on this issue. The "public health" parts of the legislation were the paramount concern, and there was little concern that in order to achieve these gains the legal rights of American citizens would have to be taken away.

Looking back on this episode and re-reading the book, I am glad to see that I was in the camp that did place a great weight on liberty and civil rights and did not let the desire for public health gains to trump these critical societal values. According to Pertschuk, I wrote ("indignantly") at the time: "This is an issue of integrity, both of individuals and organizations. It is about making commitments and breaking them. It is about saying one thing and doing another. It is about assuming a mandate beyond that given by the people one represents. It is about selling away the rights of other people to try to gain individual and organizational advancement. ... It is about putting political and organizational advancement and economic gain above principles and values, above individual rights, and above the pursuit of social justice."

Pertschuk describes me (and quotes me) as follows: "Fourth, there were those, like Michael Siegel, who considered fundamentally unethical any trade-off of tort claims for public health laws, no matter how many lives might be spared nor how tenuous and unlikely ever to be realized in the courts: 'The real question is now, and has always been, whether or not it is right for us to sacrifice the legal rights of present and future victims of tobacco products...There is truly a moral issue here. I do not think it is right for us to sacrifice the legal rights of present and future generations of people.'"

I am gratified to see that I had the courage to go up against the Campaign for Tobacco-Free Kids, and that I attempted to bring some consideration of liberty and civil rights issues into the debate over this legislation. (I would also be remiss if I didn't point out that the tort claims were so "tenuous" and "unlikely" to be realized that there are now two pending lawsuit appeals, with punitive damages totaling over $150 billion.)

But what is most interesting in Pertschuk's book is not just the negative way in which he views anyone who would dare suggest that civil liberties and rights play a substantial role in a public health policy debate, but the abusive and downright nasty way in which he characterizes any such person: "Michael Siegel's excommunication as a movement Judas of anyone who would entertain any diminution of any tobacco victim's (largely theoretical) day in court ... poisoned what might otherwise have become a reasoned intramovement debate."

So in other words, bringing civil rights and liberty into the public health debate poisoned it.

Sounds like Gian Turci's 3rd Commandment of the anti-smoking movement was alive and well in 1997.

But the corollary of Turci's 3rd Commandment was also apparently alive and well: "Any dissent from that credo only defines the enemy to be silenced." Because I dissented from the credo that public health gains were paramount to concerns about liberty and individual rights, I needed to be painted as "poisoning" the movement, rather than as making a critically important contribution to the debate.

(Not to mention the fact that the "largely theoretical" day in court of smokers resulted in a $145 billion jury verdict in their favor).

I won't even begin here to get into a discussion of my opinion that the so-called public health gains of the global tobacco settlement were not gains at all. It was largely, I believe, about money.

The issue, for now, is that Gian Turci appears to be right. The anti-smoking movement is largely characterized by groups that place perceived public health gains as paramount to any other societal values, including liberty, justice, and individual rights. And the movement does appear to be characterized by attempting to silence any dissent from that credo.

Unfortunately, I see this as just the beginning of the rest of the story. In many ways, I think the Campaign for Tobacco-Free Kids' and the ACS' and AHA's support of the global tobacco settlement of 1997 marked the beginning of the downfall of the anti-smoking movement. Because it did, in my view, mark the cooptation of the movement by groups that continually place their own perception of (largely theoretical) public health benefits above the rights of citizens, moral integrity, and the rule of law.


Mrs. Non-Gorilla said...

public health and civil liberties have always been in conflict; it isn't something tobacco control advocates have encountered out of the blue. consider quarantine, or mandatory vaccinations, or seat belt laws, or helmet laws.

because public health is a population-based concept, not an individual-based concept, it necessarily assigns less weight to the rights of the individual. whether this is good or bad requires a subjective, not objective analysis.

Bill Godshall said...

While Jenny's comments on previous postings had merit, her (presuming Jenny is a female) arguments presented in this posting aren't relevant to the June 27, 1997 deal between State AGs and tobacco companies (that was advocated by CTFK and its ENACT coalition).

Its one thing for public health laws to trump the rights of individuals to harm themselves and/or others, but a completely different matter when legislation would protect the perpetrators of disease and death by taking away rights of their injured victims (including smokers, secondhand smokers, cigarette burn victims and other injured third parties).

Interestingly, FORCES never complained that the 1997 deal took away legal rights of smokers to obtain redress in civil courts, demonstrating that FORCES doesn't care about protecting the rights of smokers. Rather, FORCES' primary, and perhaps only, goal is to elevate the act of burning dried leaves into a civil right.

Mrs. Non-Gorilla said...

not relevant? hardly. whether a compromise between two goals (reducing tobacco-related morbidity and mortality vs. selling cigarettes) or in reaction to a single disease (such as typhoid), legal actions taken to further public health will infringe upon individuals' rights.

the disagreement here -- as always -- is whether the appropriate balance was struck between a public health goal (regulating the industry) and the restrictions placed on individuals' rights (the ability to sue). i'm not going to get into the relative merits of either side, but presenting the issue as a blanket "it's wrong to value public health over individual rights" (as mike did) is disengenuous.

Michael Siegel said...

I agree with Bill here. Jenny's comments are largely irrelevant to the issue at hand, because while it's true that there is always a balance between public health concerns and infringement of individual rights in any kind of public health policy, that's not the issue here.

The reason why this conflict arises is that the infringement of individual rights is often an inevitable consequence of policy actions.

But the issue here did not involve any inevitable conflict between public health goals and infringement of individual rights. Actually, the infringment of individual rights was completely unnecessary, and was unrelated to the public health policy goals of the legislation.

In addition, the infringement of individual rights here was a re-writing of the laws governing the use of the judicial system for lawsuits against the tobacco companies, but not for any other companies or defendants. So it was clearly protectionist legislation for the tobacco industry, and there was absolutely no public health justification for supporting such a provision.

Michael J. McFadden said...

Dr. Siegel wrote: " I think the Campaign for Tobacco-Free Kids' and the ACS' and AHA's support of the global tobacco settlement of 1997 marked the beginning of the downfall of the anti-smoking movement. Because it did, in my view, mark the cooptation of the movement by groups that continually place their own perception of (largely theoretical) public health benefits above the rights of citizens, moral integrity, and the rule of law."

I respond: I agree with much of the above with one exception. I don't think the "perception of public health benefits" was the primary goal for many of these people. After having watched the Antismokers in action for roughly 30 years, I have seen their motivations change drastically.

The early activists were largely idealists, neurotics, bereaved relatives, or those who may be truly affected by strong exposures to secondary tobacco smoke. Today the scene has been largely taken over by two newer groups: the innocents and the greedy. The innocents are the millions who have literally been brainwashed by the incredible sums spent on television and other media advertising of false or exaggerated claims about secondary smoke. The greedy are those who are in the fight because it either advances their academic or other careers or because it fills their pocketbook.

Dr. Siegel, I would submit, that at least in my opinion, the driving force behind the Antismoking groups supporting the 1997 agreement was not the idealism of promoting "public health benefits" but the greed for the billions of dollars to eventually be creamed off of tax increases on smokers.

Michael J. McFadden
Author of "Dissecting Antismokers' Brains"

norbert hirschhorn said...

Michael, your blog has obscured the complexity of the McCain bill, which engendered so much debate. The bill as passed out of the Commerce Committee did not prevent lawsuits but placed a cap on ANNUAL payments the industry might be liable for if plaintiffs were successful, some 8 billion dollars.
Here I'm also re-reading Pertschuck's book.

The opponents to giving ANY immunity were mainly from the American Cancer Society, American Trial Lawyers Association, affiliates of Ralph Nader, Stanton Glantz, and --it turned out -- Koop and Kessler.

As a side note to your blog: You omitted the closing single quote mark needed at the end of the paragraph that begins, "Pertschuk describes me as follows:" Making it your quote he cited, not his own statement.

norbert hirschhorn said...

I should add one more comment: Much of the opposition by SAVE LIVES to providing any immunity to the industry stemmed from the hope that litigation would bring down the tobacco industry altogether. Pertschuk predicted that it was a "tenuous" hope, and as you have so emphatically illustrated in respect to the DOJ case, his prediction has turned out to be correct.

Michael Siegel said...

Thanks for pointing out the lack of clarity in my quoting of the book - I have clarified that so that hopefully it's now clear just what Pertschuk said and what I said.

As far as preventing lawsuits versus capping industry payments, there really is no difference, because with a cap on payments, even at 8 billion dollars, there would be little incentive for lawyers to take on these huge class action lawsuits. But that's not really the main issue - which is: Why should the civil justice system be altered in order to protect the tobacco companies? There's simply no justification for that.

As far as the reasons for opposing immunity, I can't speak for SAVE LIVES, but I can certainly speak for myself in clarifying that I was not opposed to immunity because I thought the lawsuits would bring down the tobacco industry. I was opposedd to immunity because I thought that it was unethical to take away the legal rights of American citizens to pursue justice under the well-established tort laws that have characterized our system of justice (and that in England) for centuries.

Pertschuk expressed his opinion that the prospect of gaining anything from the lawsuits was "tenuous," but in fact, he was wrong. Unless you call a $145 billion verdict against the tobacco industry not gaining anything.

norbert hirschhorn said...

145 billion dollars? You mean the Engle case? As the old saying goes, "Show me the money." Neither of us know how the industry's final appeal will go, but didn't the lorida Legislature AND the US Supreme Court fix it so nowhere near that amount could ever be paid out in punitive damages. I don't know about you but I sure wouldn't buy futures in that commodity.

Bill Godshall said...

As an organizer of the Save Lives campaign, I share Bert's concerns that more hundred billion dollar litigation payouts by cigarette companies may not materialize.

But there are currently three key cigarette cases (Engle, Price, DOJ), and a plaintiff victory in just one of those three cases could result in huge civil justice and public health dividends.

Many other potentially impactful lawsuits have been preempted or weakened by cigarette industry liability protection laws enacted in nearly every state and in Congress.

I've actively opposed cigarette industry liability protection legislation since 1989, but have found it more difficult to defeat these bills ever since 1997, when CTFK and its health organization partners publicly endorsed lawsuit protections for cigarette companies.

And since 1997, CTFK and its partners have either conceded or offered only token opposition to dozens of cigarette liability protection bills in state legislatures and Congress.

For a sports metaphor, it's easy for a few players to correctly predict a team loss when those players create divisions within their own team, and then put up little or no opposition against the other team.

Michael Siegel said...

I agree, but who do you think should make the decision about this? The Florida courts or the Campaign for Tobacco-Free Kids?

Gian Turci said...

Bill seems to forget that FORCES >DID< complain about the 1997 deal (check our archives). I am also singularly impressed by the depth of his observation on dried leaves. Thanks to him, the real reason why, on December 16, 1773, the Bostonians threw the tea in the water is now clear to me: they wanted cheap infusions of those leaves, as they were addicted.

The concept at the base of free societies is that the collective can only be the resultant of individual choices that are limited solely when they harm others. When the collective reverses that flow and micro-manages individual choice it obstructs the flow of liberty. It is OK to have AIDS control laws, but it’s wrong to demonize gays and impose on their behaviour. That, however, is forgotten when it comes to smokers – largely because smokers don’t make themselves respected with what it takes, as gays have done. The freedom of burning dried leaves is, in itself, a trivial issue; what the antismoking movement has caused - and has become - is not.

Bill Godshall said...

Gian wrote:
"The concept at the base of free societies is that the collective can only be the resultant of individual choices that are limited solely when they harm others."

I agree with that sentence, and its the key reason why I became a smokefree policy activist.

Tobacco smoke pollution harms other people, and smokefree policies and laws have been the only effective strategy that prevents selfish cigarette addicts from harming others.

And as one who has been harmed (and who knows many others who have been harmed) by smoke emitted from the combustion of cigarettes and cigars, I consider it reprehensible that FORCES continues claiming that tobacco smoke doesn't harm others.

Regarding the June 1997 deal, FORCES's never complained that the deal would take away one of the most fundamental civil rights from all smokers; the right to seek and attain civil justice when harmed by the irresponsible actions of others.

Michael J. McFadden said...

Dr. Siegel, you ask "Why should the civil justice system be altered in order to protect the tobacco companies? There's simply no justification for that."

I'd agree... but on the other hand we've seen the opposite at play too. Check out this selection from page 43 of Dissecting:


With such incentives available, it’s not surprising that many of the best and brightest legal minds in America have decided to devote their lives to fighting tobacco and its smoky product. ASH.org has an entire section devoted to Antismoking Lawyers for folks who wish to jump on the money train. Indeed, some Crusading lawyers have become so brazen in their grabs for money that they set up a conference specifically titled “How To Win A Giant Tobacco Settlement,” though they later backed down and changed the word “Giant” to “Just.”
Of course those really paying for such settlements are never the companies themselves, nor even their profiting share-holders. The bills are paid by smokers, and smokers alone. The money will flow from smokers making $30k/year straight into the pockets of lawyers making well over $300k/year with just a slight tip of the campaign funding hat to the wonderful politicians who make it all possible (www.tobacco.neu.edu/ conference/index.html;Lockjaw002@worldnet.att.net).
Naturally the lawyers didn’t simply go it alone in their battles with the tobacco companies. In a truly amazing admission in a country where all are supposedly treated equally under the law, during the course of a battle over fees for one of the lawyers (a Mr. Angelos), Maryland Senate President Miller noted that the legislature changed state law specifically for the tobacco case to make the lawyer’s job easier! According to Senator Miller:

Mr. Angelos, in my opinion, agreed to accept 12.5 percent if and only if we agreed to change tort law, which was no small feat. We changed centuries of precedent to ensure a win in this case. (Daniel LeDue. “Angelos, Maryland Feud…” Washington Post 10/15/99).

This story might have been more appropriately titled: “Equal Justice Meets Greed… Greed Wins.”


Changing the law to target an individual or a particular company is not supposed to be the way things work in America.

Michael J. McFadden
Author of "Dissecting Antismokers' Brains"

Michael J. McFadden said...

Bill wrote: "Tobacco smoke pollution harms other people, and smokefree policies and laws have been the only effective strategy that prevents selfish cigarette addicts from harming others."

Bill, I have made the following statement a number of times in a number of different places, and have yet to see a well-based contradiction to it. If you are not able to give one then I think you should honorably withdraw your comment above.

Here is my statement: "There has never yet been a study showing any significant degree of long term harm to health from the levels of smoke that would normally be encountered in a well designed modern business venue with proper levels of ventilation and air filtration."

By 'proper levels' I am not speaking of wacky Repacian type claims that 100 mile an hour winds are insufficient to the job... I am talking about the sort of situation as was measured by ORNL at the Black Dog pub a few years ago and in most modern bar-restaurants today.

Please do not cite studies based on the levels of smoke found in homes and workplaces 20 to 50 years ago, nor studies conducted in smoke chambers containing 400% the smoke levels found in the smoking sections of airplanes, nor studies of passing eye irritations and such among biased and self-selected population pools... they certainly will not prove the case.

I await Bill.

Michael J. McFadden
Author of "Dissecting Antismokers' Brains"

Bill Godshall said...

Instead of relying upon more than two decades of published scientific research and data on the hazards of secondhand smoke
in existing environments, Michael McFadden suggests relying upon results of nonexistent studies that are conducted only under atypical conditions.

That's called obfuscation.

For its ventilation, the bar beside my office (like many neighborhood bars) relies upon proping its front door wide open several hours each morning just so you can see more than ten feet (through the smoke) inside the bar.

And while expensive ventilation systems reduce the levels of particulates in secondhand smoke, even most of those indoor locations have levels of particulates that exceed National Ambient Air Quality Standards for outdoor air pollution.

Also, Roger Jenkins and ORNL are funded by the cigarette industry, which has a long history of funding and publicizing intentionally misleading research.

Cantiloper said...

Bill wrote: " Michael McFadden suggests relying upon results of nonexistent studies "

Thank you Bill. You have confirmed my point: there simply ARE no studies showing any significant degree of long term harm to health from exposure to the levels of smoke that would normally be encountered in any modern establishment with good ventilation, much less the far lower levels that would be encountered in the nonsmoking sections of such establishments with reasonably separated areas.

You have just removed the basis for claiming a need for mandated universal smoking bans in Pennsylvania. I must admit I am a bit surprised.

You mention Oak Ridge National Laboratory's "long history of funding and intentionally publicizing misleading research." Do they do this in all areas of their work? I believe their "tobacco company funding" is probably on the order of 1% or so of their overall budget... think how they might be lying about the scientific work they do for the other 99%! Some examples beyond tobacco would be welcome as it could be a serious concern given the sorts of work they do.

I believe you've noted before that you yourself serve as Executive Director of SmokeFree Pennsylvania as an unpaid volunteer, but may I ask if any of the staff of that organization have any funding, research, or expenses ties to organizations/foundations dedicated to promoting smoking bans? It might be interesting to compare relative amounts of "dependency" of ORNL and SFPA in that regard... although in either case I would prefer to analyze the quality of the research rather than judge it by the source of its funding.

Michael J. McFadden
Author of "Dissecting Antismokers' Brains"

Bill Godshall said...

Indoor air samples obtained from hundreds of different restaurants, bars and other workplaces in dozens of different US cities and states found that levels of respirable particulates in nearly every location (that allowed tobacco smoking) exceeded NAAQS for outdoor air pollution.

And yet, many of those locations have expensive ventilations systems that are touted by smokers rights ideologues like McFadden.

Cantiloper said...

LOL! I didn't realize I was an ideologue. I didn't even know I could SPELL ideologue! :>

Bill, your information may be correct, but it completely ignores the questions I asked and serves pretty much as an open admission that you really do *not* have the studies/evidence requested. Outdoor ambient air quality standards have absolutely nothing to do with health effects in the workplace... try visiting OSHA.

Please go back and read what I wrote again. I really AM interested in seeing some real answers to what I asked.

Michael J. McFadden
Author of "Dissecting Antismokers' Brains"

I guess maybe I should also sign it "Big Tobacco Ally, Sympathizer, Apologist, and Ideologue." I seem to be collecting quite an interesting set of notorious honorifics from well-funded Antismoking groups who can't pin a *real* Big Tobacco label on me! LOL!

norbert hirschhorn said...

In regard to second hand smoke, please see the latest compilation of evidence by the Californa EPA,

"Proposed Identification of Environmental Tobacco Smke as A Toxi Air Contaminant," June 25, 2005, posted at


Michael J. McFadden said...

Norbert, thank you for the link although I had seen the report before. This time however I noticed a few things I'd missed in the past.

First of all, in the listings of elements of ETS with "known health effects" there seem to be only 4 "Class A" carcinogens. I had thought the number was actually between 6 and 10, and Antismokers commonly like to scream out numbers like 50.

Secondly, I made reference elsewhere in these blog comments to an ETS study conducted by Roger Jenkins to show that ventilation and filtration were effective ways to reduce whatever small risk there could be from ETS down to levels of total insignificance. The response to that posting consisted of simply throwing Jenkins' work out the window because of his and ORNL's tobacco industry funding connections. I note that the CAL EPA report cites Jenkins several times (p. V-5, V-15, V-27 and elsewhere) so perhaps this report should be thrown out as well...

Also interesting is that even with all the resources and modern technology available as of June 2005, the Cal EPA was only able to identify a little over 400 of the 4,000 chemicals that are supposed to be in tobacco smoke. What happened to the other 3,500?

I'll grant I'm being a bit nit picky perhaps... but the questions raised above are still interesting given the fact that they were obvious enough to jump out from just a very quick and partial read-thru.

Meanwhile I'm still waiting for Bill Godshall to answer the questions I posed above in my earlier post... hopefully with a more substantive reply than simply calling me an ideologue.

(No, I have never attended a meeting of the Communist Party or the Illuminati...)

Michael J. McFadden
Author of "Dissecting Antismokers' Brains"

Anonymous said...

Here's another good quote from FORCES on what they tand for:
"We always have to remember that the purpose of FORCES is not limited to the restoration of smokers' rights, but it has as final goal the civil and criminal prosecution of the anti-tobacco operatives." That's a worthy goal don't you think?