In a number of commentaries, I have criticized the actions of several anti-smoking groups for supporting and promoting policies that make off-the-job smoking a condition that precludes employment (either through employer policies that refuses to hire smokers or through policies that actually fire existing smokers who are unable to quit by a certain date). At least two anti-smoking groups have expressed support for such policies, and to the best of my knowledge, not a single U.S. anti-smoking group has opposed these policies.
While up to now, I have criticized the support of these policies because I feel they are discriminatory, overly intrusive into individual privacy, and just plain wrong, here I will argue that supporting these policies is yielding a devastating blow to the prospects for successful tobacco litigation and therefore, is serving as a tremendous boost to the tobacco industry's financial welfare. In fact, I will argue that the efforts of groups like Action on Smoking and Health (ASH) are the best possible public relations that Big Tobacco could ever ask for in helping defend itself from the threat of litigation.
The Rest of the Story
First, let me provide my background and experience that enables me to comment on the factors that make or break most tobacco lawsuits. I have testified 10 times in tobacco litigation in the courtroom and have testified another 9 times in depositions. My "record" in cases in which I have testified is 7-2 (counting verdicts in favor of the plaintiff and settlements as "victories"). I have developed a pretty good sense of the major factors that affect juries in their deliberations over these cases.
Now back for a minute to the anti-smoking groups. By supporting policies that discriminate against smokers in employment and by facilitating positive media coverage of these issues, the groups are helping to frame smoking as an issue of personal responsibility, for which the individual smoker, and no one else, is accountable, liable, answerable, and to blame.
After all, the key argument that supports employment discrimination against smokers is that smoking is a behavior that can be easily changed. Smoking is a choice, and a smoker could easily make a decision to simply quit And for that reason, it is acceptable to impose a requirement that smokers quit in order to retain their jobs or in order to become eligible for employment at a company in the first place.
The key to defending this type of employment discrimination from being as unacceptable as other forms of discrimination (such as discrimination based on sex or race) is that smoking is a mutable behavior, while sex and race cannot be changed. But making this defense requires convincing the public that smoking is an easily changeable personal choice, not a powerful addiction.
It also means convincing the public that smokers must take responsibility for, and bear the burden of rectifying all of the societal consequences of their behavior. If smokers are causing nonsmoking employees to shoulder the burden of paying for increased health care costs, then smokers must bear the punishment for imposing these costs by being disqualified from employment or otherwise punished.
It is all about personal responsibility and accountability for one's life choices. And there's no one to blame but the smoker. This is classic victim blaming, and whether it is right or wrong, it is a frame. It is a way of viewing smoking as a societal problem and the perspective that it imparts on the public is that of individual choice, responsibility, accountability, and blame.
Now back to the courtroom.
From my experience, I have come to realize that most tobacco litigation comes down not to a debate over factual evidence, as people might assume, but over the framing of that evidence.
The facts are quite clear. The plaintiff smoked Marlboros heavily and continually for 45 years, having started smoking Marlboros at age 12, and eventually died from lung cancer at age 57. Most juries in 2006 are not going to take more than a few seconds of deliberation to conclude that the smoking caused the lung cancer.
But the real question is whether or not that individual bears the responsibility of making the decision to smoke and of continuing to smoke, or whether the tobacco companies bear at least some of that responsibility. And what the battle in the courtroom is all about is a fight over which side's framing of the facts is going to carry the day.
Is the story that the smoker, knowing full well the dangers of his behavior, made the choice to smoke and not to quit and is therefore responsible for the health consequences of his decision? Or is the story that the tobacco industry hooked that individual when he was 12 years old and unable to make an adult, informed decision, and that he became so heavily addicted that it was extremely difficult for him to quit and he was unable to do so, aided by the fact that cigarette companies finely controlled the nicotine levels in his cigarettes so that he would remain addicted?
The facts are exactly the same, but the framing of those facts is quite different. And it is the frame that the jury accepts which most directly corresponds to the verdict it will reach.
By framing the issue of smoking as one of personal responsibility, choice, accountability, and blame, ASH and other anti-smoking groups are helping to sustain and enhance a framing of the issue by which the public (which means juries) is going to view the story in the first way, rather than the second. And it is going to become increasingly difficult for plaintiff's attorneys to re-frame the facts in the second way.
Thus, in many ways, what ASH and other anti-smoking groups are doing by supporting, promoting, or not speaking out against the current wave of policies that in ASH's words punish smokers for their behavior is promoting or facilitating a framing of the issue of smoking that is going to prove devastating to the attempt to hold tobacco companies accountable for the damages caused by their products and by their years of deception about the health effects and addictive qualities of cigarettes.
It is really not as simple as saying that all these policies that punish smokers and serve as a deterrent to smoking will advance the cause of tobacco control. In many ways, this is exactly what the tobacco industry should be hoping for: a campaign that reinforces its decades-long effort to frame smoking as an issue of personal choice, responsibility, and accountability, rather than one of corporate responsibility for the damages caused by its products.
I'm not sure the tobacco companies could have crafted a more effective way to ensure that they prevail in the overwhelming majority of future tobacco lawsuits.
What is particularly unfortunate is that the tide had been turning. Years of work by tobacco control groups to re-frame the issue and convince the public to hold tobacco companies accountable paid off in the largest verdicts ever awarded, and in quite a run of favorable verdicts for the plaintiffs in these cases.
In my view, the current focus of anti-smoking policies that punish smokers is undermining these decades of work, and is quickly reversing the progress that had been made.
And for this reason, it is my opinion that anti-smoking groups are dealing a death blow to tobacco litigation.
Ironically, ASH - in its efforts to punish smokers - and other anti-smoking groups - in their refusal to condemn the policies that ASH is promoting - are helping provide the tobacco industry with the best possible legal defense. They are doing a huge favor for Big Tobacco.