Monday, January 05, 2009

"Up in Smoke": A Scathing Critique of the Role of Anti-Smoking Groups, Attorneys General, and Private Tort Lawyers in Protecting Big Tobacco

I highly recommend to all my readers the book "Up in Smoke: From Legislation to Litigation in Tobacco Politics (2nd edition, copyright 2005, published by CQ Press). Written by Professor Martha Derthick, who was with the Department of Government and Foreign Affairs at the University of Virginia, where she was the Julia Allen Cooper Professor until her retirement in 1999, the book recounts in greater detail than ever before presented the history of the Master Settlement Agreement of 1998 and the events that led up to it.

The account is not only thorough, well-documented, and fresh, but it is the most unbiased presentation that you will find. Professor Derthick's primary interest and her experience are in government and policy, she is not directly involved in the tobacco wars, and thus her perspective is not only unbiased but very welcomed and needed.

Derthick provides a scathing critique of the role of anti-smoking groups, attorneys general, and private tort lawyers in creating unprecedented and possibly unconstitutional special protection for the tobacco companies at the expense of the protection of the public's health and at the cost of a probable violation of anti-trust principles, the Constitution, and the pocket books of smokers.

The following two excerpts summarize the conclusions of the book and will hopefully entice readers to obtain and read the whole book. It is a great way for readers to explore in detail "the rest of the story" regarding the role of the states and anti-smoking groups in defying the public's trust to protect their own pockets as well as those of Big Tobacco.

Summarizing the effects of the MSA, Derthick writes: "The industry received protection against competition, in defiance of state and federal antitrust laws, which are criminal statutes. This protection enabled it to raise prices even more than the settlement obligations required. ... Political allies and supporters of the attorneys ggeneral, including the relatively small number of private tort lawyers who helped prepare the cases, received billions of dollars in a breathtaking use of public power for private gain -- and a violation of the ethics of the legal profession, which supposedly limits fees to reasonable amounts. The cigarette companies in effect gained implicit partners in the state governments and tort lawyers, both of whom acquired a stake in the continuing profitability of the industry. The settlement was richly productive of perverse incentives."

She later writes: "The tobacco experience raises disturbing questions about how governments use their power. ... The lawyers' fees wildly surpassed any standard of reasonableness. No money went to smokers, who suffered the proximate harm from the cigarette manufacturers' products. Current smokers would pay higher prices for cigarettes -- a tax, in effect, imposed by a "public" process in which they were not represented. The legal instrument that resulted from the suits and settlement, the MSA, on its face flouts antitrust laws and may yet fall in federal court. It has also been challenged - so far, unsuccessfully - on constitutional grounds, most plausibly as a violation of the compact clause, which requires that interstate compacts and agreements be approved by Congress."

The Rest of the Story

I am glad to have been a vigorous opponent to this political power-creating and money-making scheme that has caused more public health harm than almost any government action purportedly intended to benefit the public in history.

Of note, however, the leading group in the anti-smoking movement - the Campaign for Tobacco-Free Kids - was a tacit supporter of this agreement, and in fact played a critical role in the early negotiations which eventually led to this bailout deal.

In many ways, the Campaign for Tobacco-Free Kids and the Attorneys General damaged the public health cause of tobacco control more than any non-tobacco-related entities in recent history.

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