Thursday, March 30, 2006
"Even a half hour of secondhand smoke exposure causes heart damage similar to that of habitual smokers. Nonsmokers' heart arteries showed a reduced ability to dilate, diminishing the ability of the heart to get life-giving blood."
The Rest of the Story
This claim, like similar claims made by Action on Smoking and Health (ASH) and SmokeFreeOhio (SFO), is completely fallacious. Except this one is far worse.
At least ASH and SFO were merely claiming that eating a hamburger in a smoky restaurant would increase the risk of a heart attack. What ANR is claiming is that doing so causes heart damage.
I'm sorry, but this is completely inappropriate and irresponsible. It's basically telling the public that any time they are exposed to secondhand smoke for 30 or more minutes, they are suffering heart damage. And this is completely false.
Presumably, ANR is extrapolating from the Otsuka study which showed that a 30-minute exposure to secondhand smoke can induce endothelial dysfunction in nonsmokers. But endothelial dysfunction is not damage to the heart. In fact, it's not really damage at all, because it is a completely reversible change. In fact, it is the same thing that happens when you eat a hamburger.
By this logic, one could just as easily and just as "correctly" claim that eating a hamburger in a smoke-free restaurant causes heart damage similar to that of habitual smokers.
It's one thing to make an extrapolation, but this is just ridiculous.
Not only is this irresponsible because it is completely fallacious and because it might unduly scare nonsmokers into thinking that they have suffered heart damage if they have even breathed in a few wisps of secondhand smoke, but it is also irresponsible because this fact sheet completely undermines our efforts to educate smokers about the hazardous cardiovascular effects of smoking by giving them the false impression that the damage that might be caused to their hearts from smoking is no more than that of someone who breathes in drifting smoke for a half hour on a street corner.
And I've only analyzed the first part of the statement.
The second part of the statement is also completely fallacious.
Thirty minutes of exposure to secondhand smoke does not reduce the heart's ability to get life-giving blood.
Just think about it. If this were true, Otsuka and his colleagues would likely be in prison now for putting the lives of human subjects at risk. At very least, it would have been unethical for them to expose subjects to something that put their hearts at risk of not getting life-giving blood.
If ANR were correct, then we would see people keeling over from heart attacks all over the place due to brief secondhand smoke exposures. And for that matter, we'd also see people keeling over from heart attacks due to eating hamburgers, cheeseburgers, and the dreaded tater tots. After all, if endothelial dysfunction means that your heart is not able to get life-giving blood, then eating too many french fries could kill you on the spot.
The truth is (if you actually read the Otsuka article) that this study found that a 30-minute exposure to secondhand smoke actually had no effect on coronary blood flow. It did not compromise the coronary circulation, damage the heart, or deprive the heart of life-giving blood.
On the contrary, the study reported that: "Passive smoking exposure had no effect on basal coronary flow velocity in either group." In other words, this study documents that a 30-minute exposure to secondhand smoke does not present a threat of reducing coronary blood flow in patients without severe coronary disease.
So the very study that these anti-smoking groups are relying upon to make their scientific claims actually refutes the very claims that these groups are making.
The clear implication of ANR's claim is that smoking is no worse in terms of cardiovascular risk than being exposed to 30 minutes of secondhand smoke (since it claims that the heart damage incurred is the same as that among smokers). Why should smokers quit smoking then? If they are going to suffer the same amount of heart damage from a half hour of secondhand smoke as from their own smoking, then they might as well be able to enjoy their cigarettes.
I'll be honest. I am still in a bit of shock over all of this. While I realized that things were getting bad in the anti-smoking movement, I didn't realize that they were this bad.
It's one thing when a single fanatical organization stretches the science and makes some inaccurate claims to support its policy agenda. But when you have the two major organizations in the country that promote smoking bans making completely fallacious claims to support the agenda, it's difficult to simply write it off.
The truth is that the anti-smoking movement is in danger of losing the public's trust. It is, in fact, violating the public trust by disseminating, quite widely (and by several prominent groups) completely inaccurate scientific information.
It is an embarrassment to me that the ANR "fact sheet" is titled "Secondhand Smoke: The Science." It would be more appropriately named "Secondhand Smoke: The Lack of Science" or "Secondhand Smoke: The Perversion of the Science."
To call what ANR has done an overzealous or errant extrapolation is probably an injustice to the term. These claims are not what I would view as exaggerations. They are what I would view as completely erroneous.
It just occurred to me that the tobacco companies reading my blog must be getting a real kick out of this. For years, they have been accused by the anti-smoking groups of lying, deceiving, and misleading the public and making inaccurate or misleading health claims. And now they sit back and watch as one by one, anti-smoking group after anti-smoking group is caught making not merely misleading, but completely fallacious scientific claims.
It certainly seems to me that this puts us in the very uncomfortable position of having to convince the public why we should have more credibility than the tobacco companies themselves.
I can't get up in front of the media or the public with a straight face and argue that "their scientific inaccuracies are very bad but ours are just small technicalities." Or to argue that we should still be trusted on scientific issues because "not everything we say is a complete distortion of the scientific facts."
I think that this is a crisis situation for the tobacco control movement. I actually think we should stop what we are doing for a few days and take stock of exactly what we are disseminating to the public. I think we need to get our house in order, and to get it in order immediately.
If we don't correct this problem, and quickly, we are going to lose all credibility.
Wednesday, March 29, 2006
The executive director of ANR, in a debate with Maryetta Ables of FORCES International, questioned whether there is a relationship between FORCES and Philip Morris:
What I would then ask of you is whether or not Peter Bagatelos, who is a lawyer at a law firm in San Francisco who also has Philip Morris as a client, if maybe then there's a relationship between Philip Morris and FORCES?"
To which the FORCES representative replied: "No there isn't."
The Rest of the Story
It seems clear to me that ANR was attempting to discredit FORCES by suggesting to the public that FORCES is a front for Philip Morris and that this relationship therefore casts into serious doubt any opinion or information that FORCES might be providing.
There's just one problem.
ANR has admitted that there is no evidence that FORCES obtains funding from Philip Morris and therefore is standing on thin ice in suggesting such a relationship. According to ANR's web site: "a 1999 Philip Morris (PM) memo indicated that FORCES did not accept tobacco industry funding." And "For years FORCES has claimed to be a membership organization that did not receive tobacco funding. Internal tobacco industry documents are inconclusive on this point...".
In other words, ANR doesn't have evidence that FORCES is fronting for Philip Morris or that it is doing anything other than representing the interests of its members.
If you don't have the goods, then you can't deliver them. Or to put it another way, "If you want to talk the talk, you have to walk the walk."
I have no problem with exposing tobacco industry ties of organizations that appear to be representing the interests of their members but are really not doing so. But you can't expose tobacco industry ties unless you have documentation of those ties. And if you don't have the documentation, then you shouldn't be tossing around accusations like that in front of the public. At least not if you are a responsible public health organization.
In what appears to be the first issue of a series, there are a number of articles about talking to your child about not smoking. One article addresses the issue of what parents who smoke can do to encourage their kids not to smoke. The second brochure of the series, which is quite similar, also contains a section entitled "If You Smoke," which gives parents advice about what they can do to encourage their kids not to smoke if they themselves are smokers.
These brochures are apparently widely available at places like gas stations, convenient stores, and other small retail outlets.
The Rest of the Story
Philip Morris certainly has the right to conduct its own public relations campaigns and as long as they are not spreading false information, I don't have a problem with their trying to make it appear that they are concerned about the problem of youth smoking. After all, this is what all corporations do. Companies that pollute the environment often fund anti-litter campaigns to make it appear that they are concerned about the environment. Many corporations make philanthropic activity a part of their public relations plans. This is basic public relations and virtually all companies do it.
There's just one problem.
This public relations campaign is not being conducted solely by Philip Morris. The literature for this campaign is also being brought to us by the highly-reputed Harvard Medical School, whose name graces the front page and back cover of the publications and whose faculty member has written the foreword to the brochure.
You see - the brochures were created under the consultation of an advisory board, three of whom are faculty members at Harvard Medical School. One is a physician, one is a Ph.D. scientist and the other holds a doctorate as well as a public health degree. One of these professors is the Chair of the Advisory Board that helped develop these brochures and wrote the foreword to these publications.
So let's examine what these experts from Harvard Medical School have to say about the topic of youth smoking and strategies by which parents can promote a smoke-free decision by their children.
What do the experts say about what to do if you smoke but want to send a message to your child that he or she should not smoke?
The answer is simple. Just tell your kid that you don't want them to smoke. Make it clear to him that you disapprove of smoking. As the brochure states: "Even if you smoke, you can talk to your child about not smoking."
The brochure then gives the following advice: "You may feel guilty. You may think that because your child has told you again and again not to smoke, he would never try it. Or you might feel like a hypocrite telling him not to smoke when it's something he knows you do. ... But you're still the parent. You set the rules."
"As the chart shows, children whose parents smoke cigarettes are at much greater risk for starting the habit themselves. But you can decrease your child's likelihood of smoking if you let him know clearly and repeatedly that you don't approve."
In medicine and public health, we have a term for what we would call this type of advice: irresponsible.
There is no question that the most important step a smoking parent can take to reduce the likelihood of her child smoking is to quit smoking herself. To suggest anything other than that the first and most important action such a parent should take is to quit smoking herself is, in my view, completely irresponsible.
Nowhere in the brochure does it even suggest that one possible option is to quit smoking.
The brochure's response to parents who feel like hypocrites because they tell their children not to smoke while they themselves smoke is not to quit smoking so that they are not hypocrites, but instead, to continue smoking and continue being a hypocrite!
Another piece of advice not suggested by the brochure is to establish a rule of no smoking in the household. My own research has shown that household no-smoking policies are effective in preventing youth smoking initiation, even when a parent smokes. But that suggestion is nowhere to be seen.
Now let's look at what our experts say about the possible factors that influence youth smoking, and the issues that should therefore be discussed with one's children. In the brochure, only three factors are mentioned that influence youth smoking: peer pressure, parental smoking, and parental disapproval of smoking. The brochure repeatedly talks about the need to discuss "peer pressure" with your child.
However, nowhere in the brochure does it mention that maybe, just maybe, the more than $15 billion of tobacco advertising and promotion play some role in influencing smoking initiation. And nowhere does it mention that maybe, just maybe, the potent addictive power of nicotine plays a role in why people become smokers. Apparently, these are not topics that the experts from Harvard Medical School deem worthy of talking to one's children about.
My professional assessment of these brochures is that they are a complete bunch of crap. They are nothing other than a public relations ploy designed to make it appear to the public that Philip Morris is concerned about the problem of youth smoking and is serious about doing something to prevent kids from smoking and to help parents effectively promote a smoke-free decision by their children.
And the use of the Advisory Board of "experts" is simply a ploy to give legitimacy to this public relations campaign. It certainly adds a lot of legitimacy and credibility to have the brochure come out with the name "Harvard Medical School" repeatedly plastered on it than simply to have the name "Philip Morris."
In fact, the name "Harvard Medical School" appears 6 times in the brochure, while the name "Philip Morris" appears only 3 times, and only in small print on the back cover. If you read the entire brochure except for the back cover, or if you don't take the time to read the tiny print on the back cover, your impression would be that the brochure was produced by researchers from Harvard Medical School and other medical schools, not that it was produced by Philip Morris.
Now I am not blaming Philip Morris for this. Actually, I think it's a brilliantly-conceived strategy. If I were working in their public relations office, I probably would have suggested something just like this (although I would have tried to entice someone from Yale University School of Medicine to be suckered into signing on - it's also a highly-reputed medical program, isn't it?).
This is actually what Philip Morris is supposed to be doing. It's what any corporation should do. Public relations, after all, is an essential part of the marketing plan for a company. And this public relations effort is an effective one that is really helping to improve the public image of the company and to help achieve the goal of being perceived as a responsible corporate citizen. This is top-notch public relations work, and I applaud it.
What I do not applaud, however, is the role that Harvard Medical School and some of its faculty members are playing in serving as pawns in this Philip Morris public relations and marketing campaign. I don't think that medical schools or medical school faculty have any business assisting in tobacco company promotional efforts. That's just not part of what the mission of a medical school and its faculty should be.
And these so-called "experts" didn't even pull off a convincing job of producing a reputable and responsible brochure. It's completely irresponsible and nobody who works in the tobacco control field and knows anything about the research on youth smoking initiation would ever be caught dead producing publications like these.
But the crappiness of these brochures is not what this story is about. The rest of the story is that Harvard Medical School and some of its faculty members are, whether they like it or not, assisting Philip Morris in its public relations and marketing activities.
Tuesday, March 28, 2006
Tobacco Control Researcher Tells Public that Acute Exposure to Secondhand Smoke Causes Heart Attacks
The researcher, who is also the lead author of the now infamous Helena study (which concluded that the smoking ban in this Montana city resulted in a 40% decline in heart attack admissions in a six-month period), apparently told the Herald Times that chronic exposure to secondhand smoke is not necessary to cause heart disease. Instead of requiring years of exposure, as was previously thought, all that is needed is going "into a restaurant for a sandwich."
"'We used to think that heart disease came after years of exposure,' said Dr. Richard Sargent, board-certified in family practice with St. Peter's Community hospital in Helena, Mont. Then studies in the 1990s began pointing to heart attacks that were happening very rapidly from short-term exposure to second-hand smoke, Sargent said in a phone interview. 'If you go into a restaurant for a sandwich, if you go into a bar for a beer and you get exposed to a heavy amount of second-hand smoke, you're just as at risk for a heart attack as a smoker,' he said."
"Sargent, vice chairman of the Montana Tobacco Advisory Board, will speak to area health professionals about the subject later this month. He also will present a free educational community forum from 1:30 to 2:30 p.m. Thursday, March 30, at the Manitowoc Senior Center. The forum is sponsored by the Manitowoc County Tobacco Control Coalition."
"Second-hand smoke has 'an acute, rapid effect on the heart,' Sargent said. 'Thirty minutes of exposure doubles your risk for the next 48 hours.'"
The Rest of the Story
Assuming that this news article is accurately reflecting the statements made by this researcher, I come to the following conclusion: the anti-smoking movement is quickly becoming a complete joke.
I'm sorry, but this is just getting ridiculous.
First it was ASH claiming that 30 minutes of secondhand smoke exposure increases your risk of suffering a fatal heart attack to that of a smoker. Perhaps one could write that off because ASH has made other crazy statements and it's just a single anti-smoking group.
Then it was SmokeFreeOhio claiming that just 20 minutes of secondhand smoke exposure increases your risk of suffering a heart attack. Perhaps one could write that off because it is just a state anti-smoking group and isn't necessarily trying to disseminate its information nationally.
But now, the "heart attack while eating a sandwich in a smoky restaurant" claim appears to be going on tour. Anti-smoking groups are now inviting a respected tobacco control researcher to travel across the country to apparently tell the public that if you go into a bar for a beer, you might drop dead from a heart attack due to acute secondhand smoke exposure.
I have already attempted, on multiple occasions, to explain why these claims are completely fallacious (occasion 1; occasion 2; occasion 3; occasion 4; occasion 5; occasion 6; occasion 7; occasion 8).
Here I will focus my commentary on pointing out how damaging these claims are likely to be to smoking education efforts, and why I therefore view them as being quite irresponsible.
What the above scientific claim is suggesting is that the risk of a heart attack due to smoking is no higher than the risk of a heart attack during the 30 minutes that it takes to eat a sandwich in a smoky restaurant. Sound ridiculous? Of course it does. But this is precisely what the claim is stating.
If the risk of a heart attack from 30 minutes of secondhand smoke exposure is the same as the risk of a heart attack from active smoking, then is it not also true that the risk of a heart attack from active smoking is the same as the risk of a heart attack from 30 minutes of exposure to secondhand smoke?
And if we go around telling the public this, then it is certainly going to undermine the public's appreciation of the severe hazards of smoking in terms of cardiovascular disease and heart attack risk. After all, if smokers think that their risk of suffering a heart attack is no more than that of a nonsmoker who has a drink in a smoky bar for 30 minutes, then they might as well keep smoking. Why quit? Their risk is going to be just as high, unless they stop going to the smoky bar.
I feel sorry for the seniors who are planning to go to this talk at the Manitowoc Senior Center on Thursday night. If these claims are made at that seminar, they are going to be seriously misled about the cardiovascular risks of smoking.
If there was any doubt about the invalidity of the Helena study, this story should put that doubt to rest. Because this story shows the kind of reasoning we are dealing with.
The "30 minutes doubles your risk for the next 48 hours" claim is somewhat difficult to evaluate because it's not clear what risk is being referred to; however, if it is referring to a heart attack, it is inaccurate.
The rest of the story is that, assuming the newspaper is accurately reporting the statements made, the fallacious 30-minute claim is now spreading in such a fashion that is basically becoming part of the anti-smoking movement's dogma.
It needs to be put to bed, but the only thing that can do that is if anti-smoking organizations and advocates publicly disassociate from it. And I doubt that's going to happen.
If it doesn't happen, the anti-smoking movement is at serious risk of becoming a joke.
Arbitrator Rules that Big Tobacco Market Share Reductions are Due to MSA; Paves Way for Reduction in Payments to States
This ruling opens the door to the companies withholding approximately $1.2 billion of payments scheduled to be made to the states under the MSA - an action that could throw state budgets into turmoil since it was not anticipated or accounted for in state budget preparations.
Under a little-noticed adjustment provision, hidden in the fine print of the MSA, the participating tobacco companies may reduce their payments to the states if market shares of their brands (compared to those of non-participating manufacturers) fall below a certain level and an independent economic board finds that these market share declines are attributable to requirements on the participating manufacturers posed by the MSA. The reduction in payments is to be borne by those states which have failed to enact and diligently enforce statutes which require payments from non-participating manufacturers.
The market share of the participating manufacturers fell below the threshold that triggers invocation of the non-participating manufacturers' (NPM) adjustment provision two years ago. Now that the independent economics firm hired under the provisions of the MSA has decided that the loss of market share by the major manufacturers was indeed significantly attributable to the MSA, the only thing necessary for the companies to reduce the scheduled payments is to show that the states (or certain states) have not been diligent in their efforts to enforce the requisite requirements "placed" by the MSA on non-participating manufacturers.
Although the states are apparently prepared to argue that they have indeed diligently enforced the requirements and have threatened to file litigation if their expected payments are reduced, the loss of these revenues will still throw their budgets into turmoil, as it would take successful litigation (which could take a long time) for them to retrieve the revenues should the companies decide to withhold the $1.2 billion.
For this reason, there is speculation that a "settlement" will be negotiated between the Attorneys General and major tobacco companies to resolve this issue.
The Rest of the Story
I have already provided a detailed commentary on this issue. Here, I will just reinforce how much these events demonstrate that the MSA is basically a protection racket by which the states and major tobacco companies have partnered to protect tobacco company profits from competition by smaller non-participating manufacturers, who would otherwise have a potential advantage by virtue of their not signing the MSA and therefore not being subject to financial burdens imposed by the agreement.
In the negotiations, which are in progress (according to the Associated Press article), the tobacco companies appear to be in the driver's seat, as they can hold the threat of economic devastation to some states over all the states in an attempt to extract an even more advantageous contract that more firmly seals the partnership between these companies and the states.
Based on the way the Attorneys General failed dismally in their original negotiation of the MSA, my money is on the tobacco companies to walk away on the big end of the stick in this round of negotiations. The Master Settlement Agreement Settlement will be firmly in the best interests of the major tobacco companies. If I were Bonnie Herzog, I would be suggesting to my clients: "Buy!"
Monday, March 27, 2006
According to the article, "anyone that applies for a job with Atlantic Beach will be tested for nicotine. There's even a chance that you won't be hired if you test positive due to second hand smoke. Employees will also have to sign a statement promising they have not smoked in the last year and will not smoke while they are employed by the city."
When asked whether the city would similarly refuse to hire obese people to save health care costs, the Atlantic Beach city manager apparently replied: "We've not had any decision on that sort of thing - it's just an issue of smoking."
The Rest of the Story
Yes - it is just an issue of smoking. It is not, I believe, truly an issue of health care costs, public health, or workplace health promotion. It is clear that what is going on is an attempt to dictate the lifestyle choices of individuals in the privacy of their own homes. It is, as the ACLU appropriately calls it, "lifestyle discrimination." And apparently, the city detests the smoker's lifestyle choices and so it is picking on smokers as scapegoats for its supposed concern over health care costs.
If it were truly an issue of health care costs, then Atlantic Beach would surely want to discard applications from obese individuals, since they incur greatly increased health care costs.
If it were truly an issue of public health or workplace health promotion, then Atlantic Beach would offer cessation programs and services to smokers, not throw their job applications in the garbage.
This policy is particularly intrusive of individual privacy, because it apparently involves not just a questionnaire assessment of smoking status, but a biologic sample for nicotine (probably cotinine) testing. Presumably, this will involve a urine or saliva test.
The policy raises an interesting question: is the policy fair to nonsmokers who are exposed to high levels of secondhand smoke and therefore have cotinine levels that make it appear that they may smoke? Can one assume that they have lied on their job application if they declare that they don't smoke but they have cotinine levels above the cutoff used to determine smoking status?
And similarly, what about smokers whose cotinine levels fall below the cutoff? Are their applications thrown in the trash or are they eligible for jobs with the city?
It is important to recognize that cotinine is not a perfectly accurate measure of smoking status. For example, one of the largest studies of the reliability of this test for determining smoking status found that: "among self-reported smokers, 7.5% (95% confidence interval: 6.3, 8.7) had a serum cotinine level less than or equal to 15.0 ng/ml, the selected cutoff point for identifying nonsmokers." And "among self-reported nonsmokers, 1.4% (95% confidence interval: 1.1, 1.7) had a serum cotinine level greater than 15.0 ng/ml, the selected cutoff point for identifying smokers.
This means that the cotinine test is going to miss a fair proportion of smokers and that it may result in the unfair denial of employment to some individuals who do not smoke, but are exposed to secondhand smoke.
But by Atlantic Beach's reasoning, why not deny employment to passive smokers? After all, there is evidence that secondhand smoke is associated with respiratory and cardiovascular morbidity and that it increases health care costs. So if you are concerned about health care costs, why not ask people about their secondhand smoke exposure and throw their applications in the trash if they say they are exposed? Health care costs would be substantially lower if you only employed non-exposed nonsmokers.
A number of studies (some even conducted by the author of this blog) have demonstrated that health care costs are higher among exposed nonsmokers compared to non-exposed nonsmokers.
Even more troubling is the pledge that employees must take, in which they promise not to smoke while employed by the city.
OK - so what happens if they smoke a single cigarette in their home one evening? Must they call their employer and notify him that they won't be at work the next day? What if they use some chewing tobacco? How about a victory cigar after Florida wins the NCAA Basketball tournament?
Who is going to police this? Will there be random, unannounced testing in which employees must pee in a cup to see if they have been true to their pledge?
It should be readily apparent that this level of intrusion into the privacy of individuals' personal lifestyle and behavior choices is completely unwarranted and should have no place in the workplace.
Believe me - we don't want to go there.
And if you're a smoker, you probably don't want to go to Atlantic Beach.
Tobacco Control Movement Credibility Starting to Decline as Public Can't Differentiate Legitimate from Far-Fetched Claims
It takes the form of an apparent inability on the part of the public to differentiate between legitimate scientific claims of the tobacco control movement and those that are quite far-fetched. The first signs of this inability to differentiate the soundness of the claims is evidenced by an op-ed column in which the far-fetched Helena and Pueblo claims are being lumped together with claims related to the hazardous effects of secondhand smoke.
In an op-ed column published in Sunday's The Daily Camera (Boulder, Colorado), Jay Ambrose argues against the need for Colorado's recently enacted statewide smoking ban by questioning the evidence linking secondhand smoke to disease. In doing so, he lumps together claims by tobacco control advocates that secondhand smoke is harmful with claims that smoking bans in Helena and Pueblo resulted in as much as a 40% immediate decline in heart attacks.
Because the Helena and Pueblo claims have been "debunked," Ambrose argues, therefore the secondhand smoke health claims also must be invalid.
According to Ambrose: "The Helena study has been pretty thoroughly debunked by now. Its sample was tiny, the research effort was anorexic and the study didn't account for a similar decrease in a year prior to the ban. On the face of it, quick and substantial declines in heart attacks after a ban such as the one in Pueblo are much less likely to have a connection with the ban than to be a reflection of normal statistical ups and downs. This probability is brought home by a study of the heart-attack drops after smoking bans in states with a combined population of tens of millions, not in one community of tens of thousands. The finding? There was no overall drop."
The Rest of the Story
To be sure, the Helena and Pueblo studies have little to do with the health effects of secondhand smoke or the justification for smoking bans. Showing that smoking bans result in a decline in heart attacks is not a necessary criterion in order to adopt such policies. And demonstrating that these bans result in a decline in heart attacks is not necessary to conclude that secondhand smoke is a health hazard.
In short, the Helena and Pueblo studies really have little to do with the relevant issue: the alleged health hazards of secondhand smoke.
So why are these studies, which are not directly related to the health effects of secondhand smoke, being used to discredit the literature on the health effects of secondhand smoke?
The reason is that these studies call into question the credibility of the tobacco control movement and its scientific claims: the legitimate ones and the unreasonable ones equally.
The Helena and Pueblo claims are being viewed simply as claims of the anti-smoking movement, no different from any other scientific claims being made by the movement, including those related to the health effects of secondhand smoke. If the Helena and Pueblo claims are invalid, and have been debunked, then what reason is there for the public to believe the other claims being made by the same movement, even if those claims may happen to be substantially more solid scientifically?
Perhaps the most telling aspect of this story is that it puts someone like me in an awkward position in terms of trying to refute its central argument. Specifically, I am in the uncomfortable predicament of having to argue that although Ambrose is 100% accurate in his depiction of the validity of the Helena and Pueblo claims, he is not accurate in his depiction of the secondhand smoke health hazard claims.
This "subtlety" (which I'm sure it is to the public) is, I think, too fine to be generally appreciated by the media and the public. How am I to convince them that the tobacco control movement is completely stretching the science when it comes to Helena and Pueblo, but that when it comes to the dangers of secondhand smoke - well - here they are being sound in their scientific claims.
And my position becomes even more awkward when one considers the fallacious claims being made by a number of anti-smoking groups about secondhand smoke itself: I have to argue that although the anti-smoking movement is completely making up scientific claims about the health effects of secondhand smoke, they are actually correct about the health hazards of tobacco smoke exposure - just not these particular claims.
To a public and a media that are not scientists and that do not necessarily have the ability to discern legitimate from invalid claims, this is a difficult argument to make, and even more difficult to expect them to swallow!
This is precisely what I was trying to suggest when I wrote on March 13 (about shoddy scientific claims being made by anti-smoking groups) that:
"these actions are going to harm the credibility of the anti-smoking movement simply because they are so completely implausible and seemingly taken out of nowhere. The extrapolations being made are so extreme that they threaten to undermine the public's perception of the anti-smoking movement's ability to interpret and report the results of scientific studies at all, even when that reporting is appropriate.
The problem is - the public and policy makers will not necessarily know the difference. They will not be able to differentiate easily between when the claims we are making are legitimate and when they are extreme and errant extrapolations. They will just begin to question everything that we say."
And that is exactly what appears to be happening here.
While I acknowledge that this is just a small example - a single column in a small paper - I think it demonstrates precisely what the danger is to the credibility of the anti-smoking movement of anti-smoking groups that are making inaccurate, implausible, insufficiently documented, and even fallacious claims.
People may not know the difference - and it is going to be increasingly difficult to try to convince policy makers and the public that the movement is scientifically trustworthy, but just not with regards to Helena, Pueblo, the 20-minute heart attack claim, the 30-minute heart attack claim, etc.
I don't want to be in the position of having to say: "Well - if you set aside these 10 claims that we are making, we are most credible and trustworthy in what we're saying." Unfortunately, we're pretty much already there.
Colorado Treasurer Calls Master Settlement Agreement a Protection Racket Between States and Big Tobacco
According to Hillman: "When Colorado and 45 other states settled a lawsuit with the four largest cigarette manufacturers in 1998, many people believed that the tobacco companies were finally paying the price for their ill-gotten gains. What hardly anyone noticed was that the Master Settlement Agreement (MSA) really amounted to a protection racket between Big Tobacco and state governments. Participating states agreed to adopt model legislation that obligated them to protect Big Tobacco's market share against competition from small cigarette makers and others that didn't exist when the deal was struck. In exchange, the 46 states were promised $206 billion in 'protection' money through 2025."
Hillman also pointed out the hypocrisy created by the MSA: states are telling their citizens to quit smoking while at the same time relying upon smokers to balance their budgets and to fund critical state programs and services. He highlighted the dependence of the states on continued cigarette consumption to fund vital programs and the partnership that the MSA has created between the states and the major tobacco companies:
"Payments fluctuate each year to reflect increasing or decreasing cigarette sales - putting states, like Colorado, in the awkward position of telling citizens to stop smoking while relying on smokers to fund more than a dozen government programs. ... Now is the time for the Colorado Legislature to end our partnership with Big Tobacco by voting to securitize our state's share of MSA payments for the next 30 or 40 years. ... Colorado government should no longer send the mixed message to citizens that 'we want you to stop smoking' because it's terrible for your health but 'we need you to keep smoking' to pay for government programs."
The Rest of the Story
Not only do I agree with Hillman and think that he has portrayed the MSA quite accurately, I actually think the problem may be worse than he suggests.
Why? Because although he argues that securitizing MSA payments will end the partnership with Big Tobacco, I think there is reason to believe that the incentive for the states to protect the financial well-being of the major cigarette companies will still exist. This is because the states' ability to pay off the securitization bonds does depend, in part, on the success of cigarette sales.
As Hillman admits: "if consumers keep puffing away and cigarette manufacturers do make their payments, Colorado could pay off those 40-year bonds in just over 20 years." In other words, there is a strong economic incentive for the states to do what they can to protect Big Tobacco profits, even if they securitize their MSA payments.
The bottom line is that the tobacco companies have the states coming and going. The MSA scheme was brilliantly concocted by the companies: no matter what the states do, their financial well-being is inextricably tied to that of the major cigarette companies. The partnership between the two is strong and irrevocable, and the risk of states taking any major action to threaten tobacco profits is nil.
This is the ultimate reason why I think that the MSA was such a disaster from a public health perspective. Contrary to what the Attorneys General have boasted, the MSA was about money, not public health. It is a public health disaster by virtue of it providing the states with 100% security - security against the states having any incentive to enact tobacco policies that would threaten their profits.
The MSA is a huge security contract for the tobacco companies. By paying off the politically and economically greedy Attorneys General, the major tobacco companies have succeeded in achieving not only protection of their profits from competition from smaller manufacturers, but also strong partners in protecting their profits from any other threats - including litigation (a.k.a. the Price and Engle bond payments) and substantially declining cigarette consumption.
The major cigarette companies deserve this protection - they earned it by outsmarting the Attorneys General and enticing them by dangling $206 billion in front of them. They are effectively protecting the best interests of their shareholders.
But the American people deserve far better from their elected officials. The Attorneys General are not protecting the best interests of their citizens; far from it - they have sacrificed the public's interest for political and financial gain.
Thursday, March 23, 2006
Colorado Admits MSA a Disaster that has Created Partnership with Big Tobacco and Incentive to Promote Tobacco Use
"Colorado'’s share of the master settlement was initially estimated at almost $2.9 billion. In light of recent events, Hillman said, there'’s no assurance those annual payouts will remain high. It'’s time to end the partnership, he said. 'Colorado government should no longer send the mixed message to citizens that '‘we want you to stop smoking'’ because it'’s terrible for your health but '‘we need you to keep smoking'’ to pay for government programs,' Hillman wrote."
Hillman is urging the state to securitize its MSA proceeds, accepting a smaller one-time lump sum payment in lieu of annual payments, to eliminate its dependence on cigarette revenues for its financial stability:
"'If we don'’t securitize now, while the market is near its peak, our fiscal fate will remain linked to that of Big Tobacco,' Hillman wrote. He explained that tobacco companies that signed the 1998 settlement were scheduled to pay $8 billion to states this year, but inflation, declining sales volume and other factors reduced that payout by $1.4 billion. And now two of the original signatories, Philip Morris and R.J. Reynolds, propose an additional $1.1 billion cut. Colorado'’s annual tobacco payment should bring in $90 million in 2006, but tobacco companies'’ proposed cut could drop that payment to $75 million, Hillman said."
However, accepting a lump sum payment would place in jeopardy a number of important state programs and services:
"Programs that give schoolchildren extra help with reading and young moms-to-be emotional and medical support before and after their pregnancy are among the state services that get a cut of the state'’s annual tobacco-settlement payments. That'’s why opponents of a lump-sum tobacco payment warn a one-time windfall would jeopardize such programs and force lawmakers to find another source of funding."The Rest of the Story
This story is significant, because this is now the 4th state that in recent days has revealed a fiscal mess due to the MSA and which has admitted that the MSA has created a partnership with Big Tobacco in which the states are addicted to tobacco money and have a strong incentive not to do anything that would substantially reduce cigarette sales and therefore threaten their MSA payments and financial stability (Nevada; South Carolina; Utah).
This appears to be a Catch-22 situation, as settling for a lump sum payment might help reduce the dependence on tobacco revenues but it severely threatens programs that have already been funded using MSA revenues. It is difficult to argue against programs that provide medical and emotional support for young moms before and after their pregnancy. Yet these are the precise programs that are now dependent on cigarette sales (i.e., on smokers continuing to puff away) for their survival.
It took some time, but the states are one-by-one realizing and admitting that they are indeed partners with Big Tobacco, hopelessly addicted to tobacco revenues, and in the odd position of telling people not to smoke but at the same time, being dependent on those people smoking to avoid fiscal collapse.
For all of this, we can thank our Attorneys General, who are still pretending that this was all about protecting the public's health. No - it's all about the money. But you won't hear the rest of the story from them.
Wednesday, March 22, 2006
ASH Compares Smoking to Public Urination; Calls on Completely Banning Smoking in Public Because Smoke is Offensive and a Public Nuisance
According to ASH, smoking, like urine, is "offensive to the sense of smell" and interferes with "the comfortable enjoyment of life." Therefore, according to ASH's reasoning, smoking outdoors is a "public nuisance" and should be completely banned.
The press release states: "Two recent rulings suggest that smoking in public, like urinating in public, may one day be declared a public nuisance, at least in California. ... any immediate health risk created by a few ounces of liquid urine in a deserted parking lot would seem to be very small, especially when compared with the health risks created by even small amounts of tobacco smoke in the air. ... Public smoking also appears to satisfy the second criteria for a public nuisance which is that it must interfere with the comfortable enjoyment of life. ... the smoke from a person smoking on a sidewalk could constitute a public nuisance even if some members of the public say they don't find the smoke offensive, and even if many were not present at the time the smoking occurred. With California's broad and open-ended definition as to what constitutes the misdemeanor crime of creating a public nuisance, a formal finding by California that tobacco smoke outdoors is a 'toxic air contaminant' because it can cause cancers and heart attacks in nonsmokers, and a court ruling that urinating in a deserted parking lot is a nuisance because it creates a situation which endangers public health and can be offensive to the sense of smell, smoking outdoors might one day be declared to be a public nuisance."
ASH also supported its call for public smoking to be declared a public nuisance because such a declaration would allows cities to prosecute public smokers as criminals, and because it would open the door to private lawsuits brought by citizens who are offended by smoke and they could recover monetary damages for their discomfort: "Such a ruling could be important because, even if the authorities decline to prosecute the activity as a crime, the law frequently permits individuals to bring civil actions to abate a public nuisance, and sometimes to obtain monetary damages in compensation and as a deterrent."
The Rest of the Story
I find it disgraceful that ASH is comparing smoking to public urination and suggesting that outdoor smoking be banned because it is a public nuisance.
The appearance of ASH's actions, to me, is that they simply despise smokers, are offended by smokers, and want to get them out of their sight and punish them for being inferior people, who unlike nonsmokers, are not the virtues of healthy behavior for the world to emulate.
You can't tell me that there is any rational public health justification behind ASH's position or its actions. There simply is not. This is not about public health. It is simply about punishing people who ASH despises because the group apparently finds smoking to be offensive.
Perhaps the give-away is ASH's reveling in the fact that a declaration of smoking as a public nuisance would make smokers criminals and would allow nonsmokers to sue smokers and recover monetary damages from them if they lit up in public. ASH's proposal would confine smokers to the privacy of their own homes - which is exactly where ASH apparently would like all smokers to stay.
I think declaring smoking to be a public nuisance would be a grave mistake. It would open the door to declaring all kinds of behaviors that some people don't like or find offensive to be public nuisances. There are a lot of people who find it offensive for gay couples to be present in public and in the sight of their children. Similar reasoning that ASH is using could one day lead to policies that declare gay couples expressing affection in public as being a public nuisance. Bad body odor and excessive perfume could also be declared to be public nuisances since they may offend the sense of smell and interfere with the comfortable enjoyment of life.
So let me be the first (and probably only) tobacco control advocate to distance myself from this position. This is not a road that we want to go down. And I reject it completely and unequivocally.
More Absurdity Discovered in Calabasas Smoking Ban: Smokers Must Not Open Windows in Car if They Smoke
According to the article: "Smoking in one's car is allowed, unless the windows are open and someone nearby might be affected."
In defending the law, the mayor of Calabasas stated that the city is trying to "push the envelope. This is clearly a groundbreaking public health law. This is the right time and the right place to take this step. We hope it will be the way things are done all over the country and all around the world."
The Rest of the Story
At first glance, this appears to be an absolute joke. You've got to be kidding me. The city of Calabasas is banning smoking in cars with a window open because the smoke might drift out and cause health damage to a nonsmoker. Give me a break!
It's hard to take policy makers like this seriously when their argument is that drifting smoke from a car with an open window is a serious enough public health problem that the city needs to legislate that you have to keep your window closed or refrain from smoking in your car.
I thought I was on pretty solid ground in calling anti-smoking groups which supported this law fanatical, but it looks like I may have been "under-exaggerating."
At second glance, this is not such a joke. It could actually create a significant health hazard for passengers in cars with smokers - especially young children. Instead of having the windows open to get some ventilation and help clear out the smoke and reduce the childrens' exposure to secondhand smoke, now the children are going to be exposed to higher concentrations of secondhand smoke.
The ordinance, allegedly intended to protect the public's health from some sort of serious hazard, is actually creating a new hazard that didn't previously exist: extremely high exposure to secondhand smoke among children in cars with a smoker.
Smokers who are attempting to reduce their children's exposure to secondhand smoke by keeping windows open in their cars while they smoke are now actually committing a criminal offense - a misdemeanor - if a nonsmoker might be exposed. To protect themselves from a hefty fine, a potential criminal record, and a possible lawsuit, they may logically decide to just keep the windows closed and thus expose their children to much higher levels of secondhand smoke than before the ordinance.
What this all goes to show is that the ordinance is not truly a "public health law," as the mayor declares. It is really about policy makers and anti-smoking groups punishing smokers because they are offended by their behavior and expressing their superiority to a group of people who they apparently despise.
So I certainly hope this is not the way things are done all over the country and all over the world. Now is the right time to put an end to this lunacy.
Tuesday, March 21, 2006
Two More States Admit Addiction to Cigarette Sales Revenues; Public Health Harms of MSA Becoming Clear
In both states, the possibility that Master Settlement Agreement (MSA) payments may be less then expected is threatening to throw the state budgets into disarray, as the financial stability of the states was dependent on the continuation of this stream of revenues, which had been allocated for critical state programs.
In Nevada, social and health programs for the seniors and disabled are at risk due to a potential $7 million reduction in MSA payments. In South Carolina, required bond payments are at risk due to the potential $15 million reduction in MSA proceeds.
The loss of these funds in Nevada could be devastating for seniors and the disabled. The legislature does not meet again until February of 2007 and the governor has stated his reluctance to call a special session of the legislature to appropriate additional revenues to save these programs; thus, they may need to be suspended for at least a year.
According to an article in the Las Vegas Business Review: "While the state takes a wait-and-see approach, Mary Rodriquez worries about what will become of the people she feels most desperately need those tobacco dollars. The program director of the non-profit Helping Hands of the Vegas Valley assists people like Leon Wilson. The Las Vegas senior, who is wheelchair bound, can now get to his doctor's appointments and go shopping for groceries because of this service. Settlement money pays 'almost 100 percent' for the disabled and senior transport services used by Wilson and others like him, according to Rodriquez. It is among the independent living assistance options offered by the Las Vegas Helping Hands, which receives support from the Fund for Healthy Nevada's half of the annual settlement allocation."
"'Without the tobacco dollars, the Division of Aging Services would just be devastated,' warned state Assemblywoman Chris Giunchigliani (D-Las Vegas). 'Over 30 percent of their budget is from the tobacco fund.' The problem, however, goes beyond tobacco companies potentially withholding settlement payments, she added. Nevada shouldn't be dependent on the settlement to take care of health-care needs in the first place."
The article concludes that: "Unfortunately, many state health care and senior programs have become addicted to tobacco money."
In South Carolina, the Attorney General referred to the MSA as "lunacy" because of its creation of a system by which the states must promote and protect the profits of Big Tobacco in order to sustain needed the solvency of the state's budget. According to an article in the Island Packet:
"'It's another lunacy of this program,' said Trey Walker, spokesman for South Carolina Attorney General Henry McMaster. '(Attorney General McMaster) finds himself the tobacco regulator in South Carolina, and put in a position where he has to prop up big tobacco to make sure they sell enough cigarettes to make payments to the states. That shouldn't be the role of government. (McMaster) has said this is one of the most disgraceful abuses of the legal system that he's ever seen.'"
The Attorney General admitted directly that the states are addicted to the tobacco money: "'Now states are addicted to this money,' Walker said. 'The state, for better or for worse -- we are wedded now to those payments.'"
The Rest of the Story
This is public health???
No - This is the mess that the Attorneys General who signed the MSA have created. As the states are increasingly coming to recognize openly, this is a scheme by which the states have become partners with Big Tobacco in protecting the major companies' profits in order to protect their own financial solvency. And this dependency on smokers to fund critical state programs and services has created an incentive for states not to take any actions that would substantially decrease cigarette sales.
Moreover, the scheme now directly threatens the health and well-being of the public, as reductions in expected payments are apparently going to result in the elimination or severe cutting of social service programs upon which the public has become dependent.
Funny - you didn't hear about this aspect of the story when the Attorneys General addressed the media last week and boasted about how great they and the MSA were in reducing youth smoking rates. Unfortunately, this is the rest of the story.
Monday, March 20, 2006
The British Action on Smoking and Health (ASH-UK), as quoted in an article in today's Guardian, questioned the need for outdoor bans in places where nonsmokers can avoid exposure to secondhand smoke, suggesting that perhaps Calabasas' ordinance goes too far.
According to the article, ASH-UK stated: "In some outdoor environments, like football grounds and railway stations, there is genuine cause for concern. But in other places, there are pretty obvious facts about air circulation which mean the potential for harm is far less. Certainly, stopping people smoking in their homes is taking things a bit far."
The article continues: "OK, but let us briefly adopt the Californian position. What if someone sparks up on their balcony, there's a big gust of wind and some hapless person 50 yards away is hit by a very diluted puff of smoke? You may as well put in a call to the undertakers there and then, eh? 'You've got to get this issue down to what's reasonable and sensible,' Arnott [of ASH-UK] says, with a very British kind of pragmatism. 'That's an extreme, fundamentalist position. And I don't think we're that kind of country, are we?'"The Rest of the Story
Bravo for ASH-UK!
It's about time that some anti-smoking group come out and put an end to the relentness march towards banning smoking everywhere, even where the science- and policy-based arguments for these bans break down. Kudos to ASH-UK for acknowledging that efforts to protect people from every possible bit of drifting tobacco smoke is not what the smoke-free movement should be about, and for having the courage to suggest that groups like their U.S. namesake (ASH-US) are taking an "extreme, fundamentalist" position.
Remember that it was also ASH-UK that became the first tobacco control organization on public record (to the best of my knowledge) to condemn policies by which employers refuse to hire smokers.
It appears that ASH-UK's position is very similar to the one I have taken, which supports indoor (workplace) smoking bans but questions the need for outdoor smoking bans in places where people can move freely about.
Obviously, it is in sharp contrast to ASH-US's public statements, which seem to me to support banning smoking everywhere, even in private homes.
I think this action by ASH-UK is significant because it breaks down one huge barrier to the return of the tobacco control movement to some sense of reason and sensibility in its push for smoke-free laws: no longer am I the only tobacco control advocate or group to publicly oppose these broad outdoor smoking bans, such as in Calabasas.
Now what we need is for some United States groups - I'll take even one for now - to take a similar action as ASH-UK has done. But I won't be holding my breath.
The contrast between ASHes is a huge one. But it represents, in my opinion, the difference between a position that remains science-based and retains public credibility and one that is fanatical and threatens the credibility of the tobacco control movement.
CHALLENGING DOGMA (Post #10): Anyone Who Disagrees that Secondhand Smoke Causes Chronic Disease Must Be Personally Discredited
Moreover, one could not associate in any way with "these people" because they were the "enemy" and one doesn't associate with the enemy.
I think readers can see this mentality now even in the blog itself. I have been repeatedly chastised for "associating" myself with groups like FORCES and even for merely linking to their web sites. The same slams against me were taken with respect to my expressing agreement with arguments made by certain individuals (e.g., Jacob Sullum) and groups that have in the past made arguments against some tobacco control policies.
When I defended Martha Perske against attacks laid at her character and integrity, I was told that I had been snookered and that she was simply a "tobacco mole."
I could give many more examples, but I think it is quite clear that this dogma -- that anyone who disagrees with our position on the health effects of secondhand smoke must be personally discredited -- remains very much alive in the tobacco control movement.
In fact, I have myself been on the receiving end of this dogma when I expressed opinions that challenged certain aspects of secondhand smoke health effects (e.g., the Helena and Pueblo studies and the effects of secondhand smoke in wide-open outdoor places). I was personally attacked and attempts were made to personally discredit me: I was called a tobacco stooge and a traitor, a fanatic, I was accused of taking tobacco industry money, and I was told that I was a discredit to the movement, all simply because I expressed an opinion in disagreement with the prevailing wisdom of the movement. People began asking what happened to me and why I moved over to the dark side.
The Rest of the Story
Well (luckily), this dogma never sat too well with me. First of all, if I went along with that dogma, I would have had to cut off communications and associations with a number of my friends and family members. Plus, it would have been quite boring at family gatherings if we all agreed on everything. ("I'm glad they banned smoking everywhere in Calabasas." "Oh yeah - so am I; smoking on streets and sidewalks is such a tremendous public health problem." "You're right - it only takes 20 seconds before it triggers fatal arrhythmias." "Glad those kids won't have to see any smokers." "Yeah - and I'm glad I won't want to have to work with any. My company is banning smokers.")
Second of all, the way I was brought up, we had a different term for someone with whom we strongly disagreed about a scientific issue. It wasn't bad or evil or inferior or depraved. It was simply...
That's it. We learned to respectfully disagree. But there was no need to disassociate from that person. Or to attack them. Or discredit them as an individual. Or avoid giving them any praise for any reason. Or from giving their address to someone (I guess the 1970s equivalent of linking to their web site). You didn't get thrown out of the family because you disagreed about a particular issue (unless you were a Red Sox fan among a family that hailed from the Bronx).
So you can imagine my shock and dismay when, in 1999, I asked Americans for Nonsmokers' Rights (ANR) to post a clarification to an article I had written in order to make it clear that I was not maligning the integrity or character of 2 individuals with whom I disagreed and ANR refused to do so. The statement I asked them to post was a very brief one and it simply clarified the piece that I had written. The statement merely pointed out that these authors had not personally taken tobacco money - in other words, it presented the truth.
I was shocked when ANR told me that they would not accede to my request to make a clarification of my own article. The article had my name on it, for God sakes!
But you can imagine that I was even more shocked and dismayed when they provided the reason for their refusal: "it would be a mistake to state anything that would give him credence. ... I realize that your views on the matter are heart-felt and sincere, and that mere removal of your name from the paper, without more, will not be entirely satisfactory to you. But at this point ANR must put its political credibility ahead of what you consider to be your scientific credibility."
Since when was it a mistake to present the truth? Since when was it appropriate to disrespect an author's autonomy to write his own piece and to censor that piece so that it only says what the organization wanted it to say, even if the author completely disagreed and protested vigorously?
This was truly a wake-up call for me. If there was such a thing as a blog in 1999, I think The Rest of the Story might have been initiated back then. But I was still getting use to the idea of using an answering machine back then.
What's most sad to me is that this dogma has not changed in the past 7 years, and if anything, it has only been strengthened.
It took months before I successfully convinced ANR to simply make a small clarification to their attack on Associate Attorney General Robert McCallum so that it was clear they were not accusing him of being a former tobacco industry lawyer, which he was not. I was met with extreme resistance in making that request because the organization apparently didn't want to say anything positive about someone who they thought opposed tobacco control, even though it was the truth and their accusations were undocumented.
And of course, one of the most telling events was my being kicked off a tobacco policy discussion list-serve because I expressed disagreement with the prevailing wisdom of the movement. I had become an "interference" with the "quality" of the list-serve. Apparently, the quality of a tobacco control list-serve is measured by whether or not there is any disagreement and such disagreement is viewed as an interference with the functioning of the list-serve. When it occurs, censorship must be invoked.
After a while, I just had enough of this. Life is too short, and I'm not going to conduct my career in this way.
And so I'm pleased to today offer my 10th post of the Challenging Dogma series, and to dedicate this post to the memory of Rosalind Marimont, who passed away on March 15, 2004, almost exactly two years ago. Rosalind was a scientist for FORCES International for several years. She had been a scientist and statistician for the National Institutes of Health and along with Robert Levy of the Cato Institute, published a report questioning the government's claim that smoking kills more than 400,000 people each year.
Documents Suggest that Attorneys General are Scheming with Big Tobacco to Protect Financial Health of Major Tobacco Companies
A document from the Philip Morris document site demonstrates that the Attorneys General and participating manufacturers in the MSA met to discuss, share information, coordinate, and work together on legislative proposals throughout the nation to protect the market share of Big Tobacco by making it more difficult for non-participating companies to compete in the marketplace, and by doing so, to help protect the amount of MSA money coming into the states.
The January 25, 2004 memorandum recounts the events of a January 20, 2004 meeting between representatives of the National Association of Attorneys General (NAAG) and representatives of Philip Morris, R.J. Reynolds, Brown & Williamson, and Lorillard.
At the meeting, several types of legislative proposals to make it more difficult for non-participating manufacturers to compete in the marketplace were discussed, including allocable share legislation and equity fee legislation.
Allocable share legislation (to the best of my understanding) is legislation that requires non-participating manufacturers to pay additional money to the states, beyond that which would have been required under the language of the MSA, which provides for a "refund" of payments that are beyond those that would have been required of the non-participating manufacturers had they actually been participating manufacturers. This legislation appears to have been enacted in most of the states.
Equity fee legislation (to the best of my understanding) is legislation that imposes taxes or fees on the non-participating manufacturers in the form of a fee. This legislation appears to have been enacted in only a handful of states. For example, Minneosota and Michigan enacted laws that imposed a 35 cent per pack "equity fee" on non-participating manufacturers.
Not only were these legislative proposals discussed, but there appears to have been some give and take in terms of discussion of the actions that these two parties (the AGs and Big Tobacco) could take to enhance the prospects for passage of this type of legislation, which would protect Big Tobacco profits from the threat posed by non-participating manufacturers.
In fact, it appears that elements of a negotiation took place, where offers were made and discussed and the possibility of coordinating actions was considered. In other words, the document suggests that this was more than simply a neutral reporting of information. There was discussion about actions that the parties would or would not agree to take in an effort to enhance the chances of favorable legislation being enacted and "the entire MSA scheme" (NAAG's terminology, not mine) being preserved.
For example, a NAAG representative at the meeting was reported to have made the following points:
- "As a policy matter, the states are under attack for being too close to participating manufacturers;
- States are in favor of balancing but uncomfortable with legislation that would side them too closely with participating manufacturers;
- Potential for legal challenges - NAAG thinks substantial risk that Michigan will be challenged and is vulnerable to constitutional attack. More vulnerable than other types of proposed legislation;
- Freedom Holding - NAAG wants to avoid anything that directly involves states in marketplace. Entire scheme of MSA is currently under attack, and we do not want to increase that vulnerability and put that scheme at risk [...NY still up in the air on what to do next in Freedom Holding case];
- Think equity fee will make it harder to get allocable share enacted;
- Media is reporting that AGs and PMs are conspiring to hurt the little guy; and
- We want to concentrate on allocable share and think the best thing that could happen is to have that be the only thing pending in the states."
The R.J. Reynolds/Brown & Williamson representative apparently responded by noting:
- "We're not trying to enlist support of AGs - happy to have AGs remain neutral;
- "we ... think equity assessment will survive constitutional challenge; and
- "... equity fee legislation doesn't make the situation worse."
To which the tobacco company representative apparently replied that "equity assessment makes it easier to pass allocable share."
In other words, what appears to be going on in this exchange is a discussion of strategy: What is the best strategy for enacting legislation in the states to protect the big tobacco companies profits' from competition from the smaller ones, and what can the parties at the table do to enhance the prospects of passing this legislation?
The discussion apparently then turned to the involvement or lack of involvement of the Attorneys General in the process of promoting this protective legislation.
A NAAG representative then apparently acknowledged (as I have been suggesting during the past week) that "states' exposure to bankruptcy is a serious concern." He also apparently emphasized that: "The states are concerned with potential for an OPM [original participating manufacturer] bankruptcy. Feel terribly exposed. Serious, unpredictable risk. States have had lengthy discussions of what happened in Price case."
There appears to have been a clear discussion of strategy and the roles that the two parties did or did not and would or would not play.
A tobacco company representative apparently noted that "during our November meeting, the AGs said nine states critical - RJR worked our buns off to accomplish this goal. We did so - so what's next?"
The question "What's next" suggests to me that on the table was a discussion by the parties of what steps to take. In other words, this was not just a reporting of actions that the sides took, but to some extent at least, a discussion of coordination of activity.
Then, in the most telling aspect of the document, it is apparent that the Brown & Williamson representative made an offer to the Attorneys General: "B&W Lobbyist offer - what if we back off in the 9 critical states you identified. 1. Not press equity assessment in nine states. 2. Not link equity assessment to allocable share in any state - Can we be assured of your neutrality?"
A representative of the Attorneys General apparently responded that "we prefer that nothing happen anywhere. Can't comment for every state and in states that already passed allocable share - the equity assessment is not welcome."
Clearly, by my reading of this, there was a negotiation taking place. An offer was made and the sides were apparently discussing an agreement. Would the Attorneys General agree to remain neutral, rather than oppose the equity assessment legislation if the tobacco companies agreed to back off from the equity assesssment legislation in 9 critical states in which the Attorneys General were apparently trying to get allocable share provisions passed?
In fact, it was clear that a decision had to be made during the meeting by the parties about what the Attorney General in Virginia would do about the filing of protective legislation (it's not clear exactly what type was on the table - presumably allocable share legislation) and that the Attorneys General were consistently referring to the promotion of state protective legislation as a "scheme."
A NAAG representative apparently asked: "what are we doing in Virginia? The wolf is at the door. We cannot leave this room without deciding what we're going to do. The AG wants an answer."
The Brown & Williamson lobbyist apparently asked: "if we cannot pass allocable share in Virginia, West Virginia and North Carolina, what does that do to the scheme?"
To which a NAAG representative apparently replied: "hurts it a lot."
In other words, this meeting clearly gives the impression that the Attorneys General and major tobacco companies were scheming together. In fact, one Attorney General representative actually used the term "coordinated strategy."
A tobacco company representative apparently asked for NAAG's assistance: "with respect to MSA specific bond cap efforts - we would appreciate NAAG's assistance."
Another deal was apparently thrown on the table: "Are the participating manufacturers in a position to say they will not push equity assessment anywhere in exchange for states taking the draft NAAG proposal off the table?"
I think this clearly indicates that the meeting involved more than simply an exchange of information, but that it involved negotiation and coordinated strategies and actions.
The Rest of the Story
It seems quite clear from this document that the Attorneys General and Big Tobacco were scheming to protect the profits of the major tobacco companies from competition from smaller companies. It appears that the Attorneys General were accomplices in the efforts of Big Tobacco to protect its market share, and that the Attorneys General were acting to protect Big Tobacco in order to protect their own financial status (i.e., that of the states whose budgets are dependent on the volume of MSA payments). Moreover, it appears that the Attorneys General were negotiating with, coordinating strategy with, and working together with the major tobacco companies to accomplish the enactment of Big Tobacco profit protection legislation.
Moreover, it is interesting to note that the Attorneys General themselves refer to the entire MSA as a "scheme." They also acknowledge that the "scheme" will be hurt a lot by the failure to enact Big Tobacco protective legislation (allocable share legislation) in just 3 critical states.
Furthermore, the Attorneys General acknowledge that states' exposure to bankruptcy is a critical concern. In other words, they appear to acknowledge that the states' financial health is dependent upon the financial health of the tobacco companies and that they therefore have a large incentive to protect the profits of Big Tobacco.
I think the document makes it clear, for the many reasons I highlighted above, that the Attorneys General were (and presumably are still) working and acting together with the major tobacco companies toward the same result or goal: namely, the enactment of state legislation that would protect Big Tobacco from competition from smaller companies not subject to the MSA's requirements and thus would protect both parties at the table: the participating manufacturers (by making it harder for non-participating manufacturers to compete) and the Attorneys General (by preserving and bolstering MSA and non-participating manufacturer payments to their states).
The document appears, then, to put all the pieces of the puzzle together and to confirm what I have been arguing for some time: that the Attorneys General and the states have become partners of Big Tobacco and that they have a huge incentive to protect Big Tobacco's profits. But the document goes further than I would have been able to otherwise assert by demonstrating that the Attorneys General are actually working together with, and coordinating their actions with Big Tobacco.
I recognize that this is a complex issue and I'll try to explain it more clearly below for readers who may not be familiar with the details, but first, let me make 3 critical points:
To even be able to have created this group of state officials who is doing their work for them - promoting legislation in almost every state to protect them against competition from smaller manufacturers - is a tremendously clever and brilliant accomplishment. Moreover, the tobacco companies are not in the business of protecting the public's health or looking out for the public's best interests. So taking advantage of the economic incentives of the MSA that encourage the states to protect Big Tobacco's interests is certainly something that they have the right to do.
The tobacco companies have every right to promote state legislation to protect their profits and to compete with smaller manufacturers. I don't think they are doing anything fraudulent, illegal, or otherwise wrong in doing so, with one possible exception. It is possible that what they are doing is unconstitutional, in the sense that the MSA could represent a compact between the states that violates the Compact Clause of the Constitution, as has been claimed in a lawsuit initiated by the Competitive Enterprise Institute. In that sense, the "scheme" that the tobacco companies and Attorneys Generals discussed at the meeting might be an unconstitutional scheme. That remains to be seen; it is not yet clear how the court will rule on this lawsuit.
2. On the other hand, I do not view the Attorneys General's actions in such a positive light. They, unlike the tobacco companies, do have the responsibility to protect the interests of the public, including the public's health. They, as the ones who brought these lawsuits in the first place, specifically put themselves in the position of protecting the public's health and of putting the health of the citizens above the profits of the tobacco companies. And they, as recently as last week, have been boasting to the public how concerned they are about the public's health and about how much they are doing to protect the public's health and to fight the tobacco companies.
But here we have what I see as pretty strong, if not conclusive evidence that the Attorneys General, rather than fighting against Big Tobacco to protect the public's health is actually scheming with Big Tobacco to protect the major tobacco companies' profits in order to protect the financial health and budget stability of their states.
What's clear to me is that the MSA is not about public health at all. What it's about, quite simply, is money. And to obtain and protect that money, the Attorneys General are apparently working with, coordinating with, and strategizing and scheming with Big Tobacco to protect the profits of companies which produce products that are the leading cause of death in their states.
This is hardly behavior that I would view as being appropriate for public officials who are putting themselves in front of microphones trying to cast themselves as being the protectors of the public's health. Far from it - they are the protectors of Big Tobacco's profits.
So in scheming and working together with Big Tobacco to protect their profits from competition from smaller tobacco companies, I do view the actions of the Attorney General as representing wrongdoing - not legal wrongdoing (notwithstanding the constitutional challenges to the MSA), but in a sense, ethical wrongdoing. It hardly seems ethical for state officials who are working under the pretense of protecting the public's health at the expense of Big Tobacco profits to be actually working in a coordinated fashion with those very companies to protect their profits.
3. Finally, I want to make it clear that I acknowledge that simply in meeting with the tobacco companies to discuss the MSA, I do not view the Attorneys General as doing anything wrong. In fact, the MSA requires them to meet with the tobacco companies no less than twice a year.
However, the expressed purpose of those meeting is specified as follows: "The purpose of the meetings and conference is to evaluate the success of this Agreement and coordinate efforts by the Attorneys General and the Participating Manufacturers tocontinue to reduce Youth smoking."
As I interpret this, the purpose of these meetings is to determine how successful the MSA has been in reducing youth smoking and to coordinate efforts to further reduce youth smoking.
Nothing in the memorandum of the January 20th meeting between the Attorneys General and participating manufacturers is about evaluating successes in reducing youth smoking prevalence or in discussing efforts to reduce youth smoking. Instead, the meeting is about how to protect the profits of the participating manufacturers from competition from the non-participating manufacturers. So the Attorneys General cannot successfully defend themselves by arguing that they are in fact contractually obliged to meet with the companies to discuss and work together for this purpose. They are not. They are obliged to meet with the companies and work together only to reduce youth smoking, something which was apparently not even a topic of discussion at the January 20th meeting.
For those who want to better understand the issues involved, here is an excerpt from an excellent summary that Bonnie Herzog of Smith Barney provided:
"Due to the lack of compliance by many new entrants into the cigarette industry, states have been losing money as the compliant manufacturers’ market share declines have led to lower MSA payments. Therefore, as more non-compliant manufacturers enter the market, states have started to enact more stringent laws and regulations to prevent these "illegal" manufacturers from slipping through the cracks of the MSA and thereby achieving a significant cost advantage.
Allocable Share Legislation: Currently the NPM (non-participating manufacturer) model statute (Exhibit T of the MSA) states that if a NPM pays more to a state on a per unit basis than the state would have received if that NPM were a signor on the MSA, then the state must refund the difference. This is often referred to as the "cap release."
Allocable Share legislation modifies the Model T statute of the MSA and eliminates the cap release, thus requiring a compliant NPM to absorb additional costs or pass them on in the form of higher prices. The current per carton escrow deposit required for the NPMs under the Model T statute is around $3.90 (which includes inflationary adjustments), which is close to the current national average MSA payment required for OPMs and SPMs.
Eighteen states passed this type of legislation in 2003, and an additional 13 (Colorado, Connecticut, Georgia, Kentucky, Maryland, Massachusetts, Michigan, Nebraska, New Mexico, South Dakota, Tennessee, Utah, Wyoming) have passed it so far this year. Eight additional states have proposed this legislation.
Quarterly Escrow Payments: Currently, non-participating manufacturers (NPMs) are required to make annual escrow payments. However, under the Quarterly Escrow Payment legislation, states have now begun to require NPMs to make quarterly payments to further ensure compliance. Requiring more frequent payments from a free cash flow standpoint, puts pressure on NPMs to increase their cigarette prices. Over the past two years, 29 states have passed this legislation; six states have proposed this legislation this year, (So far, Kentucky is the only state that has passed quarterly escrow payment.) ...
Other Legislation: In addition to the proposals mentioned above, there is also the threat of additional taxes or fees being placed on the non-Big Four manufacturers in the form of a fee. So far, Michigan and Minnesota are the only two states that have passed this type of legislation. On May 27, 2003, the governor of Minnesota signed into law a bill stating that NPMs would have to pay a $0.35 per pack fee to Minnesota. Minnesota was the first state to levy a fee against nonparticipating manufacturers. (Minnesota was one of the four states that independently settled with large cigarette companies and did not participate in the MSA.) On January 8, 2004, the governor of Michigan signed into law a bill requiring all nonparticipating manufacturers (NPMs) of the MSA to pay an "equity assessment" at a rate of $0.35 per pack of 20 cigarettes. The "equity assessment" is in addition to all other fees, assessments, and taxes levied by law and will be collected on April 15 of each year based on cigarettes sold in the previous calendar year."
The rest of the story is that the Attorneys General appear to be acting and working with the major tobacco companies to protect Big Tobacco from competition from smaller manufacturers in order to preserve and enhance both Big Tobacco profits and the financial health of the states. In contrast to what they would have us believe (that they are fighting the tobacco industry in order to protect our health), I believe that the Attorneys General are working together with the big tobacco companies to protect their profits, and that the end result has been a scheme that has substantially harmed the public's health to the benefit of large financial and political rewards for the Attorneys General and plaintiffs' lawyers.