Tuesday, February 14, 2012

Could the Cigarette Companies Actually Be Right This Time?

One of the deeply ingrained pieces of dogma that I was taught as a young anti-smoking advocate is that the cigarette companies are never right. Everything they say is false, every argument they make is invalid, and we in tobacco control are always right.

To be sure, there is still a lot that the tobacco companies say that is not right. For example, the continuation of their arguments in the courtroom that a particular smoker's lung cancer is not causally related to his smoking is generally a futile effort that doesn't fool anyone in 2012. I think the companies have the right to argue that they should not be held responsible for the decision of an adult smoker to smoke, but to argue against the connection between smoking and lung cancer in 2012 does not help companies that are trying to re-shape their public image.

However, CNN's Bob Greene highlighted on Sunday an area where I agree that the tobacco companies have it right: requiring companies to place graphic warning labels on their products which exhort their own customers not to use the products and which provide a special toll-free smoking cessation number is an infringement on these companies' free speech rights. It goes beyond the simple provision of factual and uncontroversial information and enters the realm of coercing speech intended to persuade consumers not to use the product.

Greene writes: "No matter how much many of us may dislike what cigarettes have done to the nation's health, the First Amendment argument is a compelling one. The government risks setting a troubling precedent when, regardless of how laudable the intentions, it tells someone -- either a person or a company -- that it must say and show things that aggressively advocate against the person's or company's own interests. That's the slipperiest of slopes to start sliding down. What about the text-only warning labels that have appeared on packs of cigarettes for decades? The cigarette companies have never liked them either, of course. But the argument in court is that there is a legal distinction between requiring labels that state facts and requiring illustrations that serve to actively advocate against the purchase of the product. "

The Rest of the Story

Despite being a staunch anti-smoking advocate, I agree with the cigarette companies' basic argument that compelling them to advocate against the use of their own products goes beyond any government interest in ensuring that consumers have adequate factual information about the risks of a consumer product.

Moreover, even if the level of scrutiny is lowered and the Central Hudson test is employed, it is impossible to argue that requiring these warning labels is the most narrowly tailored intervention that the government could propose to advance its purpose.

While I've previously put forward my opinions on this case, what I want to focus on today is what expressing these opinions means for me. Because the dogma in the anti-smoking movement is that the cigarette companies are never right (and we always are), this opinion of mine is political suicide from the perspective of being a part of the anti-smoking movement.

Very few, if any, other anti-smoking advocates, regardless of their actual position on the legal issues, will publicly disagree with the Department of Justice's position. This type of dissent from the dogma of the anti-smoking movement is viewed as heresy.

As with disagreement with scientific issues, there is only one way of looking at legal issues in the anti-smoking movement and that is on the side of the anti-smoking groups.

What the tobacco control movement needs to realize, however, is that failing to base our opinions on the actual scientific and legal issues puts us in the same historical camp as the very companies we have criticized. Once we reject evidence-based science and policy in favor of one-sided dogma, we have left the realm of public health and entered the area of partisan politics. Sure, we may be on the health side of the issue, but we're still playing politics.

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