Monday, October 31, 2005

CHALLENGING DOGMA (Post #6): Cigarette Companies Have a Responsibility to Produce a Safer Product

One of the most well-established and long-standing dogmatic principles in the tobacco control movement, it seems to me, is that cigarette companies have a responsibility to produce and sell a safer product if one is technologically feasible (which presumably it is, according to internal company research).

This premise seems to me to be one of the most basic ones that inform the actions and proposed policies of tobacco control practitioners.

For example, it plays a key role in the DOJ tobacco lawsuit. According to the government's complaint against the cigarette companies: "Even though they have long understood the hazards caused by smoking and could have developed and marketed less hazardous cigarette products, defendants chose and conspired not to do so. ... At least since the early 1960's, the Cigarette Companies have been able to remove potential carcinogens and to independently alter the delivery of tar and nicotine respectively. Many alternative designs are possible, some of which are less hazardous than the cigarettes that the Cigarette Companies actually manufactured and sold. ... Despite their demonstrated ability to design cigarettes that they believed were less hazardous, defendants have refused to test and/or actively promote such products."

It is also a basic premise outlined in The Cigarette Papers: "In 1994, R.J. Reynolds announced a novel product called Eclipse, which, according to newspaper accounts, delivers a nicotine aerosol to the smoker together with lower levels of other toxins than cigarettes deliver in their smoke. ... Does R.J. Reynolds plan to withdraw Camel, Winston, and Salem cigarettes and replace them with Eclipse? Not at all. If the industry can make a substantially less dangerous product, why does it not cease marketing the more dangerous ones that are presently being sold?" (Glantz SA, Slade J, Bero LA, Hanauer P, Barnes DE. The Cigarette Papers. Berkeley, CA: University of California Press, 1996, p. 440-441)

It seems to me that anti-smoking organizations and advocates often criticize the tobacco companies for not producing and selling less hazardous cigarettes and for failing to pursue to completion the research and development of less hazardous products that has already occurred.

The Rest of the Story

This may come as a surprise to many, but I do not feel that cigarette companies have any responsibility to develop, produce, and sell a less hazardous cigarette product. And I don't think that it is appropriate for public health practitioners to criticize the companies and to try to hold them accountable on this score.

Why? Because if cigarette companies have a responsibility to produce a less hazardous product, then they have a responsibility to the health of the public. And if they have a responsibility to the health of the public, then they certainly have a responsibility not to produce, market, and sell a product that is going to result in the deaths of thousands of consumers. Thus, they would have to be viewed as bearing the responsibility for removing this hazardous product from the market. Producing a marginally (or even greatly) safer product would just not cut it under that reasoning.

This is a fatal flaw into which I believe the anti-smoking movement has fallen. The flaw is that if the cigarette companies truly have a responsibility to protect the health of the public, then they have a responsibility to withdraw these deadly products from the market. It seems ludicrous to me to argue that the companies should produce a safer product instead of arguing that they should simply phase the existing products out.

Am I arguing that cigarettes should be withdrawn from the market? No. What I am suggesting is that the rationale behind criticizing the companies for not developing, producing, and selling a safer cigarette is absurd. How can a public health practitioner possibly attack the companies for not producing a safer cigarette but not attack them for failing to phase out the products entirely? If cigarette companies bear a responsibility to the health of their consumers, then what possible public health rationale is there for the companies to merely remove or reduce the levels of a few of the carcinogens and toxins, rather than all of them?

I do not believe that the cigarette companies are responsible for the health of the public (including their consumers). I believe that as a society, we have made a decision (at least for now) that cigarettes are a legal product and that despite the deadly nature of the product, we are going to tolerate and allow this product to be produced and sold. Given that decision, the responsibility to safeguard the health of the public has been lifted from the tobacco companies.

Clearly, I believe the companies do have a responsibility to be truthful in their marketing, including all of their advertising, public relations, public statements, etc. And I believe they have a responsibility to inform consumers about the health risks of their products. And they have a responsibility not to deceive consumers in any way, including misleading them about the health effects of smoking, the potential benefits of low-tar or "light" cigarettes, the addictiveness of nicotine, etc.

But I don't believe their responsibility extends to the development of safer cigarettes.

In as many tobacco cases as I've testified (at least 7, including Engle, which resulted in a $145 billion punitive damage verdict against the companies), and with as many criticisms as I have leveled against the companies in those cases (misleading advertising, targeting youths in advertising, undermining public understanding of the health effects and addictiveness of smoking, etc.), I do not believe I have ever criticized the companies for failing to pursue to completion a reduced risk product.

I am not necessarily suggesting that as a public health strategy, establishing incentives for the companies to develop and market such products would be a bad thing. It's a complex issue and I don't think it's yet clear exactly what the tradeoffs would be in pursuing that type of a harm reduction approach in tobacco control.

But I think it greatly undermines the public health definition and framing of the problem of tobacco products in our society when practitioners attack the companies for failing to pursue less hazardous cigarettes. Because the problem, in my mind, is not that cigarettes are more harmful than they have to be. The problem is, simply, that they are substantially harmful. Period.

I think the movement is harmed, not helped, when we emphasize the failure of cigarette companies to pursue reduced risk cigarettes as if they are neglecting some health responsibility that they have to the public's interest.

They are companies which are in the business of selling an inherently dangerous product. Nonetheless, it is a product that we as a society have decided to retain as a legal one. We shouldn't pretend that decision has not been made. We shouldn't pretend that tobacco companies should be held to the same standards as other companies which manufacture consumer products.

Ultimately, this is one aspect of the Department of Justice's complaint that I do not agree with. I do not follow the logic of this aspect of the complaint and I do not believe that the companies' failure to produce a safer cigarette violates, in any way, any United States law that I am aware of. It is the clear intent of our society (including our government and even our public health establishment) to allow the product to remain on the market. There is simply no rationale for expecting companies to produce a safer cigarette when society has already accepted the high level of risk that existing cigarettes pose.

Friday, October 28, 2005

Company Institutes Policy to Financially Punish Smokers

According to an article in last week's Editor & Publisher, Gannett Company - a media conglomerate consisting of newspapers, television stations, and other media outlets - is instituting a new policy in January for its 40,000 U.S. employees which will require any of its employees who smoke or use smokeless tobacco products to either attend a stop smoking program or to pay a $600 surcharge for their health insurance coverage.

According to the article: "During the insurance enrollment period, employees will be asked if they use tobacco products even occasionally. Those who say they smoke or chew tobacco will be given the choice of enrolling in a stop-smoking program at the company's expense, or paying the surcharge."

According to a company spokesperson: "This is part of a health and wellness initiative the company started a few years ago." The policy reportedly applies to all smokers and smokeless tobacco users, even if they use the products only occasionally.

This policy appears to be part of an increasing trend of employer policies related to off-the-job smoking. These policies range from health insurance surcharges to refusal to hire smokers, and in the case of Okemos, Michigan-based Weyco, Inc., even to firing existing employees who smoke.

The Rest of the Story

Interestingly, although I have been dedicated to tobacco control for more than 21 years, I oppose the Gannett policy and do not believe it to be justified.

First, let me discuss why I oppose the policy as it is and with the reasons given for its institution.

For one thing, the policy is clearly not crafted in order to address the problem of Gannett's health care costs and the desire to recover health care expenditures related to smoking. If it were, then one would expect that the company would simply issue a surcharge for smoking employees.

But that's not the policy. The policy is that smoking employees must either pay a surcharge or attend a smoking cessation program. Not successfully attend a smoking cessation program - just attend such a program.

That's troubling to me, because it suggests that the primary purpose of the policy is not to recover increased health care expenses paid by the company for medical care for smokers, but instead, to punish smokers who don't seem to want to quit smoking. If you smoke and you aren't motivated enough to quit to join a smoking cessation program, then you are punished by having to pay $600 per year. If you join that smoking cessation program but aren't able to quit, then you don't have to pay anything, even though your health care costs will be no lower than the smokers who failed to attend the program.

If the purpose were to simply recover increased health care costs from smokers, then it shouldn't matter whether someone attends a stop smoking class or not. The only thing that matters is whether they smoke or not. Attending stop smoking classes does not, in and of itself, lower health care costs.

In addition, if the primary purpose of the policy was to offset increased health care costs for smokers, then it seems illogical to institute the financial penalty for anyone who smokes, regardless of how little they smoke. The Gannett policy appears to treat someone who smokes 2 packs per day the same way as someone who lights up a cigarette or two every two weeks. That hardly seems fair. Nor does it make any sense if the purpose is to offset the increased risk of expensive health care for smokers.

If there is any doubt about my inference that the policy is one to punish smokers rather than recover health costs, the company has removed it by explicitly stating that the policy is a health and wellness initiative, rather than based on a purely financial or actuarial consideration.

Now before some anti-smoking advocates become outraged, I am not against employee programs to encourage smoking cessation. However, in public health we generally try to provide positive incentives to encourage people to change their behavior. The idea of punishing people for not taking the actions we desire of them is quite distasteful to me, and I don't believe that it belongs in the public health repertoire.

(Note that at least one major company - Dow Chemical - offers financial incentives in the form of salary bonuses to encourage changes in health behaviors of its employees.)

So while a health insurance surcharge based on a purely financial or actuarial concern may be somewhat reasonable, a financial punishment for smokers (disguised as a health insurance surcharge) is not.

The punishment approach to public health is also unjustified, I would add, based on the addictive nature of cigarette smoking. If smoking is truly as addictive as anti-smoking advocates have been claiming (and the addictive nature of smoking is one of the principal tenets of the DOJ lawsuit against the tobacco companies), then you simply can't start to punish people for failing to be able to (or to want to) quit smoking.

Now I will comment on the policy of instituting increased health insurance payments for employees who smoke.

While this policy, if based solely on financial (actuarial) concerns, seems somewhat reasonable, I am still opposed to the idea. And here's why:

First, and most importantly, I think this type of policy puts us on a slippery slope that we just don't want to go down. After all, if smokers should be required to pay a health surcharge, then certainly those who are overweight should also pay a surcharge, since obesity is responsible for a higher level of increased health care expenses.

And employees with higher fat intake and lower intake of fiber, vegetables, and other sources of anti-oxidants should also be required to pay a health surcharge, since these nutritional factors play a substantial role in the incidence of chronic disease.

Alcohol is a well-recognized risk factor for certain gastrointestinal cancers as well as for liver disease, so employees should certainly be questioned about their alcohol intake, with surcharges applying for excessive alcohol consumption.

Workers with lower levels of physical activity should also have to pay a significant surcharge, since physical activity is well-recognized as being a substantial factor in determining the risk of heart disease and in overall health status.

For younger employees, unsafe sexual practices should certainly be charged extra. The risk for a variety of diseases, including very costly ones such as HIV/AIDS, is obviously related directly to these health behaviors.

Moreover, there is a relatively linear dose-response relationship between smoking and lung cancer, so a graded system of health surcharges should be implemented such that the surcharge increases with the level of smoking. If you are trying to recover increased health care costs, then there is simply no justification for forcing someone who smokes only two or three cigarettes per day to pay as much as someone who smokes two to three packs of cigarettes per day.

A second reason why I oppose the idea of health surcharges for employees who smoke is that I think it truly undermines the entire public health movement and its emphasis on the addictive nature of smoking, as well as undermines the recognition, among public health practitioners, of the extreme difficult of people changing certain health behaviors.

As I mentioned above, if smoking is truly as addictive as anti-smoking advocates have been claiming, then you just can't start punishing smokers for being addicted to tobacco products. And if the role of the tobacco industry in recruiting smokers is also as strong as anti-smoking advocates have been saying, then who are we to start casting blame on smokers by punishing them financially for an action that we are arguing, in the courtroom, is not entirely under their control?

I therefore think that the policy of charging smoking employees for their smoking completely undermines what many public health advocates have been working for in terms of trying to address the tobacco industry's role in the smoking problem. These types of policies simply help reinforce the notion that smokers are to blame and they help take the focus off of corporate responsibility, enhancing the "blame the victim" approach that I think is contrary to our public health objectives.

Third, I think that these policies represent an unwanted invasion of privacy of employees. I think that employers have a legitimate interest in the lawful, off-the-job, personal behavior of their employees with respect to only two things: (1) job performance; and (2) consistency with the mission of the company.

Outside of that, I think that employers do have a legitimate interest in trying to help employees improve their health by, among other things, encouraging them to change unhealthy behaviors, but I think such efforts should remain separate from any official employment-related aspects of the job, such as hiring and firing policies, salary, etc. (with the exception of financial incentives, which I think are acceptable to encourage health behaviors).

Health and wellness promotion programs are an important aspect of employment that employers should offer, but they should remain separate from other aspects of the employer-employee relationship. I don't mind being told that I should be concerned about my health behaviors and offered help, but it should in no way be a condition of my employment nor a factor in determining my salary (which is effectively reduced if a health surcharge is imposed).

While promotion of health and wellness in the workplace is invaluable, I don't think we need to invade employees' privacy in order to accomplish it.

Physicians for a Smoke-Free Canada Calls for Government Buyout of Tobacco Companies

Physicans for a Smoke-Free Canada (PSC) this week called for a government buyout of Canadian tobacco manufacturers, with the government to run the country's tobacco business or see to its administration by a non-profit entity until 2030, when prohibition would take place.

According to a newspaper article that describes the PSC proposal: "a public interest agency would take the place of tobacco manufacturing companies." Tobacco companies would thus be a non-profit, rather than for-profit entity. It is undecided whether this agency would be run by the government or by some private non-profit entity, but it would basically run the country's tobacco business, including the manufacture and sale of tobacco, until 2030, when prohibition would become effective.

According to one of the PSC directors: “The important thing to us is we transfer the tobacco industry to one that supports our health-orientated tobacco policy rather than running counter to it.”

That PSC director stated: “There are already strong public health reasons for the government to take over the tobacco industry. If BAT implements yesterday’s announcements, much of the Canadian capacity to control cigarette manufacturing in ways that reduce smoking will be lost. That is why it is urgent for the federal government and all stakeholders to work quickly to develop a strategy for public management of this industry.”

According to a study prepared by PSC: "Because the public health goal of reducing tobacco use directly conflicts with the tobacco industry’s profit motive, the way to overcome the health, social and economic problems caused by 'big tobacco' is to take the business of supplying cigarettes out of their hands and put it into the hands of public organizations with a clear public health mandate."

One author of that study stated that: “Business corporations are the wrong choice for tobacco. They have a long and well-documented history of working against public health measures. And where the public interest is vulnerable, Canadians have often chosen to place public-interest agencies in control. This choice should now be made for tobacco.”

Another co-author commented: "There are many types of public-interest enterprise that could provide cigarettes to smokers while supporting public health goals. These include familiar government and non-government agencies: crown corporations, co-operatives, non-profits and charities, as well as more innovative models, like the community interest corporation.”

The Rest of the Story

In my opinion, this is one of the most ludicrous and absurd (yes both ludicrous and absurd) "public health" proposals I have heard in a long time, one that I think would be extremely damaging to the very integrity of what we call public health.

To start, I have heard little that is more absurd than the notion that an entity, whether for-profit or not-for-profit, can "provide cigarettes to smokers while supporting public health goals." In what possible way does manufacturing and selling a product to 5 million people that results in the deaths of 45,000 people per year, which represents the leading cause of preventable death in Canada, support public health goals?

Perhaps I was simply not aware that producing and selling a product that kills 45,000 people annually is supportive of a public health goal. In my training, contributing to people's deaths didn't even make the long list of goals that we were encourged to pursue.

The very thought of putting the government or a non-profit agency in the express business of manufacturing and selling a lethal product is sickening from a public health perspective. In my view, it would substantially erode the entire public perception of the goals and meaning of public health and of the role of the government in trying to improve health, not manage the administration of deadly consumer products.

Next, I think the proposal severely distorts the way that the public health problem of tobacco should be defined and framed. I do not define tobacco as a public health problem because tobacco companies make profits from the sales of their product. I define it as a public health problem because the product results in death and disease. It doesn't make it any less of a public health problem if the products are originating from a for-profit corporation, a non-profit agency, or the government.

One of the PSC directors stated that the important thing is to "transfer the tobacco industry to one that supports our health-orientated tobacco policy rather than running counter to it." I don't think that's the important thing at all. The important thing, I think, is to do what we can to decrease tobacco-related morbidity and mortality, and to do so in a way that is consistent with public health principles and ethical principles. Not to mention the fact that it hardly seems rational to argue that an entity that produces and sells a deadly product to several million members of the population can in any way be supporting a "health-orientated tobacco policy rather than running counter to it." Killing 45,000 people a year for no reason (not even to make a profit and prevent economic collapse) sounds pretty counter to health to me.

I also don't view tobacco as a public health problem because the for-profit nature of the cigarette manufacturers leads those companies to oppose anti-smoking measures and undermine anti-tobacco messages. That's certainly an obstacle, but not one that justifies putting the government into the business of selling a deadly product. Plus, I can't think of a more effective way of undermining anti-smoking messages than having a government body or non-profit agency selling the product.

The next problem, and it's a severe one, is that the proposal would destroy the civil justice system as we know it. Once tobacco manufacturing and sale is in the government's hands, there is no one for citizens to hold accountable for any damages they may suffer from their use of the product or from the manufacturing entity's failure to take appropriate steps to produce a safe or safer product. Not only would thousands of Canadians continue to die from smoking, but they would not be able to seek justice for any wrongs they feel they have suffered.

Then there is the problem of the government becoming dependent upon tobacco revenue. The money required to buy out the tobacco companies would create an intense, long-term economic pressure to sell large volumes of cigarettes in order to recover the capital expenses. And once those expenses were recovered, the government would become accustomed to using the tobacco revenue for essential services. Just look at what has happened with the tobacco revenues generated by the Master Settlement Agreement in the United States.

Dependent upon tobacco revenues for basic government services, any incentive to eliminate tobacco production would be gone (regardless of any well-intentioned public health desire to eliminate the product or any statutory requirement to eliminate the product) and almost certainly, the date of eventual elimination of cigarettes would be continually extended, negating that alleged public health benefit of the proposal.

In some ways, the situation could become worse than the status quo, because government receipt of the more than $1.2 billion annually would add substantially to the $7.7 billion it now brings in from tobacco tax revenue, resulting in nearly a $10 billion a year business. That is dough that even the progressive and forward-looking legislators of Canada are not going to be able to give up.

Next we get to the ethical problems. I think it is highly unethical for the government of a country to be engaged in the selling of death and disease to the citizens of that country. I think it is absolutely wrong (immoral) for even one cent of my tax dollars to go into the production of and sale of a deadly product. And I certainly don't think it would be ethical to use taxes paid by Canadian citizens to produce and sell a deadly product.

The very idea that an agency that would take over the production and sale of tobacco products could be called a "public interest agency" is an oxymoron if I've ever heard one. How is selling a product that will kill 45,000 Canadians each year in the public interest?

And the idea that perhaps a charity would be the appropriate entity to do this job begs for a re-definition of that term. How charitable it is to provide cancer sticks for the population!

I sympathize with those who are frustrated by the problem of tobacco and I appreciate the attempt to search for ultimate solutions to the problem. But I don't think that in searching for an "ultimate" solution, we can throw everything else out the window, including our conception of the basic role of government, the basic role of public health, the appropriate use of taxpayer money, the importance of the civil justice system, and basic ethics.

Perhaps what is behind the proposal is the illusion that if only cigarette advertising and promotion were eliminated, cigarette demand would largely disappear and then the product could be phased out quickly. I disagee with that assertion and that's why I call it an illusion. While cigarette advertising and promotion has been shown to significantly affect cigarette consumption, the effect is relatively small in terms of the overall level of cigarette consumption in the population. The empirical literature does support the prediction that there would most likely be a decrease in cigarette consumption, but not anywhere near the magnitude necessary to make phasing out cigarettes feasible (if the feasibility of such a phase out is indeed a concern, which it appears to be).

It's not at all clear to me why the proponents of this policy "solution" to the tobacco problem believe that they will be able to feasibly phase out cigarettes and other tobacco products within 25 years. What is going to change? How many smokers are going to quit? Exactly how and why is cigarette demand going to decrease so drastically that a phase out of the product becomes feasible.

I just don't see any plausible scenario by which that could occur, especially in an environment where physicians are looking for a quick-fix, ultimate solution to the problem, rather than focusing on the daily battle that I think needs to be waged to address this public health problem.

The major reductions in smoking prevalence in the United States came about not from any drastic federal legislation, but from the daily battle fought by members of a grassroots social movement.

There simply is no deus ex machina ending to this problem, and the search for one I think may be getting in the way of what we need to do to address the problem right now.

In the words of Gil Scott Heron, "the revolution will not be televised."

UK Proposal for Smoke-Free Workplaces Turns into a Joke

The UK Health Secretary this week announced that the Government's approach to dealing with what it states is a serious occupational health threat to food service workers - secondhand smoke - will be to force business owners to decide whether to allow smoking or to serve food.

After a lengthy and highly publicized consideration of the issue, the proposal finally introduced into Parliament would ban smoking in all restaurants (pubs) that serve food, but would exempt pubs that only serve alcohol, not food.

According to the Independent: "When they [Department of Health officials] looked at the manifesto and the very difficult balance they were trying to strike between protecting employees and respecting the rights of the minority, 'to do something that is perfectly legal', it was decided the right balance was the one contained in the manifesto - although there were disadvantages which ever way they went."

According to a survey by the Publican, the industry magazine, 20% of pubs in England and Wales reported that in response to the new law (as proposed) they would stop selling food in order to continue to allow patrons to smoke. Based on industry statistics, that amounts to 8,500 pubs which would switch from food-serving to alcohol only-serving establishments and continue to allow smoking.

These figures throw into question the Health Secretary's assertion that "the measures proposed would increase that [the proportion of workers with a smoke-free environment] to 99%, so 12 million more workers would be included." Her claim depends upon an assumption that none of the existing food-serving pubs would choose to continue to allow smoking, which appears to be quite inaccurate.

The basic rationale for the proposal was described by the Department of Health as follows: "We believe that these proposals offer the right balance between reducing the public health risk whilst allowing an element of choice for those who do want to smoke with a drink to do so in a way which has minimal impact on other people."

The Rest of the Story

What appears to have previously been a health debate has rapidly deteriorated into a big joke. The proposed policy is, I believe, not a public health policy at all. It is simply a completely unwarranted and arbitrary intrusion of the government into basic business decisions of pub owners in England and Wales.

Why? Because the proposed policy in no way guarantees health protection for a single individual. What the proposal basically amounts to is a law to force pubs to choose between allowing smoking and serving food. But that is a choice that will be left up to them. The government is not truly proposing to regulate whether smoking occurs or not, it is merely regulating the type of business practices that must be followed by owners who make the decision to allow smoking.

So what the government is basically saying is: We don't care if you allow smoking or not. But if you do allow smoking, we're going to make it harder for you to gain customers and make profits by prohibiting you from serving food!!!

That's not a public health policy - it is a severe and completely unjustified and unwarranted intrusion into free enterprise.

To make matters worse, the Department of Health justified its proposed policy by explaining that it wanted to "offer the right balance between reducing the public health risk whilst allowing an element of choice for those who do want to smoke with a drink." But if you're going to allow an element of choice for those who do want to smoke with a drink, then there is no reason not to allow that same element of choice for those who want to smoke with their food.

So if what you're after is allowing an "element of choice," then why not simply exempt establishments that serve food or drink, thus allowing an element of choice for those who want to smoke with their food or drink?

Further, the Department of Health states that its goals were to strike a balance between "protecting employees and respecting the rights of the minority to do something that is perfectly legal." Well if respecting the rights of the minority to do something that is perfectly legal means allowing them to continue to smoke while drinking, then doesn't that respect also have to apply to allowing them to continue to smoke while eating? Once you recognize that there is a "right" to do something that is perfectly legal, then it seems to me that you cannot infringe upon that right.

Were I a member of Parliament, I would vote against this proposal because I do not feel that it is an appropriate public health policy and I don't think it is justified by any valid public health reasoning. It is simply a law that arbitrarily requires a business decision to be made, and in such a way that it simply adds an arbitrary burden to owners who decide to continue to allow smoking in their establishments.

As such, it is an unwarranted government intrusion into private business.

If there were some rational health-related reason why serving food were incompatible with allowing smoking, while serving alcohol was not, then the policy might be justified. But there is no such reason; thus, there is no justification for the policy.

If the health risks of secondhand smoke are as bad as the Department of Health claims ("A non-smoker, living or working in a very smoky environment over a prolonged period, is 20-30 per cent more likely to get cancer than a non-smoker who does not. Hundreds of people die every year in the UK as a result of high levels of exposure to passive smoke."), then it should eliminate this health hazard by eliminating smoking in all pubs. If it isn't that bad, then the government has no business intruding into the decisions of pub owners regarding what types of food or drink they can serve in their establishments. But the Department has to make up its mind. Which is it?

I understand and respect the fact that many of my readers are not convinced that secondhand smoke is a serious health threat and thus they do not support smoke-free laws. That reasoning makes perfect sense.

But I cannot respect the fact that in 2005, public health practitioners who are convinced that secondhand smoke is a serious health threat would support a policy that creates an arbitrary unlevel playing field for businesses (as they did in Georgia and in Indianapolis). If it's that serious a threat, then get rid of it. If not, then leave the poor bar and restaurant owners alone.

Wednesday, October 26, 2005

Sullum Hits Bullseye on DOJ Lawsuit and Master Settlement Agreement

I think that Jacob Sullum is exactly on the mark with his commentary in the Washington Times, published yesterday, which addresses the Department of Justice's (DOJ) lawsuit against the tobacco companies and the Master Settlement Agreement (MSA) between 46 states and the major tobacco companies.

Sullum points out, insightfully, that the DOJ lawsuit was flawed from the moment Judge Gladys Kessler disallowed the government's claim that it should be allowed to recover public expenditures for smoking-related diseases. When that arm of the government's charges against the cigarette companies was thrown out in 2000 and only the Racketeer Influenced and Corrupt Organizations Act (RICO) claims remained, Sullum argues, the government was in severe trouble.

And the D.C. Court of Appeals decision that disallowed disgorgement of past profits and emphasized that any civil remedies under RICO had to not only be forward-looking but also be designed to prevent and restrain future violations of the Act, Sullum opined, was perhaps the death knell for the case, as none of the government's major requested remedies meet these criteria.

As Sullum put it, "the Justice Department cannot follow through on its threat without breaking the law." In other words, to follow through on its original intent to severely punish the industry financially and to recover substantial money for federal government or public health coffers, DOJ has to push for remedies that are inconsistent with the appellate court's decision, and therefore, with the law.

With respect to the MSA, Sullum describes it as a "deal under which 46 states got billions of dollars a year from the major cigarette makers, the tobacco companies got protection from liability and competition, and smokers got stuck with the bill."

He argues that the Attorneys General who pushed for and signed the MSA violated the Consitution by entering into a multi-state compact without Congressional approval. In an attempt to derive billions of dollars for their states and improve their political standing by being able to state that they took on Big Tobacco, Sullum suggests, the Attorneys General actually helped the major tobacco companies achieve protection from liability and from competition from the smaller, non-participating manufacturers.

Sullum termed the Attorney General signatories to the MSA "extortionists" who "have reaped political benefits as foes of Big Tobacco. Talk about ill-gotten gains."

The Rest of the Story

Those who have followed my blog for any length of time will recognize that Sullum is making many of the same arguments that I have been trying to outline, with regards to both the DOJ lawsuit and the MSA, over the past months.

I agree that having to rely on RICO as the basis for the DOJ lawsuit tends to doom it from the start, as applying RICO to the tobacco industry is like trying to fit a square peg in a round hole, as I have suggested.

Furthermore, in order to use RICO to extract significant financial penalties from the tobacco industry, the Department of Justice and the public health intervenors have had to "break the law" (I wouldn't put it so bluntly, but agree that they have had to essentially ignore the D.C. Court of Appeals' decision and continue to pursue remedies that are clearly not allowable under the law).

I agree that there are no viable monetary remedies, including the "$10 billion for a smoking cessation program, $4 billion for anti-smoking 'education,' and financial penalties that would be imposed if the number of smokers under 21 does not decline at a government-specified rate."

I agree that the MSA was basically a deal under which the states received loads of money, the major cigarette companies achieved a large measure of immunity as well as protection from competition, and that the financial burden of the deal has largely been passed along to smokers in the form of cigarette price increases.

I agree that the MSA likely represents illegal collusion between the states and major tobacco companies that violates the Compact Clause of the Constitution.

And finally, I agree that the Attorneys General who negotiated and signed the MSA are extortionists in the sense that under false pretenses (that they were concerned about the public's health), they derived billions of dollars for their states, while at the same time committing the worst public health blunder of my lifetime, and at the end of the day, they have attempted to gain political standing by pretending that they helped to bring down Big Tobacco.

The lesson, I think, for anti-smoking advocates is that the ends do not justify the means. As noble as our ends might be, we must place more of a value on the integrity of our leading organizations. Using all tactics available to pursue what are arguably good ends, even if it involves the misapplication of the law, should simply not be acceptable to anti-smoking advocates.

In the end, it is not just the "gains" that matter, but how those gains were obtained. If they were "ill-gotten gains," then we as public health practitioners and organization do not stand on much higher ground than the very tobacco companies who we are attempting to extract money from on the grounds that their actions have been unethical.

And if we lose the moral high ground, then we will have lost the movement.

Another Misleading Public Claim: This Time, a TobaccoScam Attempt to Discredit an Individual Who Opposes the Anti-Smoking View

Among the studies listed in a database of studies on the economic impact of restaurant smoking bans on the TobaccoScam website is a study by David W. Kuneman and Michael J. McFadden which concludes that bar and restaurant smoking bans lead to decreased bar and restaurant revenues (Kuneman, D.W., McFadden, M.J. Economic Losses Due to Smoking Bans in California and Other States).

According to the web site: "Kuneman is a retired research chemist who worked at Philip Morris."

After seeing this database entry, I assumed that Kuneman had been a tobacco research chemist working at Philip Morris and that the study was therefore essentially a tobacco industry study.

This conclusion was supported not only by the web site's claim that Kuneman is a retired research chemist who worked at Philip Morris, but also by the web site's introduction, which prefaces the database by stating: "Check out this section to see how the tobacco industry cooks the books behind the scenes. ... Watch how Big Tobacco operates behind political fronts from Anchorage, Alaska, to New York City — and could be doing so right now in your community."

On the alert for detecting the tobacco industry operating behind the scenes and using political fronts, I naturally assumed that David Kuneman was simply an example of such a tobacco front, having done tobacco research at Philip Morris and now writing to support the interests of Philip Morris.

My assumption was supported further by my findings on the Americans for Nonsmokers' Rights Foundation's (ANRF) Tobacco Industry Tracking Database site, where I found that David Kuneman appeared in no less than 7 different tobacco industry tracking documents.

Among the allegedly "damning" documents that showed up in the database was a letter to the editor that Kuneman wrote to the St. Louis Post-Dispatch in 2000 in which he argued against smoking bans. While I didn't see any immediate relevance to the tobacco industry, the fact that he showed up prominently in the tobacco industry tracking database simply supported my assumption that Kuneman was simply a Big Tobacco front.

The Rest of the Story

The truth is that Kuneman worked as a research chemist not for Philip Morris, but for 7-Up, which was acquired by Philip Morris in 1978 and sold in 1986.

This truth was revealed in the article itself, which noted that Kuneman "worked for 6 years in the 1980s as a research chemist for Seven-Up and still draws a small pension from that work. At the time of his employment Seven-Up was owned by Philip Morris."

While it might not be technically inaccurate to state that someone who worked for 7-Up "worked for Philip Morris," it certainly seems misleading, and it was no doubt very misleading to me when I came across it. Because of the web site's claim that Kuneman worked for Philip Morris, I wasn't even aware that he actually worked for 7-Up until I did some substantial research into the issue.

The question that arises is why would the web site have changed the information from what Kuneman reported (that he worked for 7-Up, which was owned by Philip Morris) to say, instead, that he worked for Philip Morris.

Based on the context in which the misleading claim occurs, I can only infer that the reason for this change in the reporting of the truth was that the web site aims to try to discredit the study by making it appear to be simply a Philip Morris study - an example of how Big Tobacco "cooks the books."

But that's not the case at all. This is in no way a Philip Morris study. And the most relevant fact, that Kuneman didn't do tobacco research but studied the chemistry of a soft drink, I think gets distorted in the way that the web site reports it.

This story kind of reminds me of Americans for Nonsmokers' Rights (ANR) justification for calling Associate Attorney General Robert McCallum a "former tobacco industry lawyer" when in fact McCallum never represented any tobacco company, but was a partner in a law firm that did. While ANR's contention that because McCallum, as a partner, derived income that originated from R.J. Reynolds, he was therefore a tobacco industry lawyer may be technically true under a rather wide interpretation of the term tobacco industry lawyer, the critical point is that the statement is grossly misleading, and in a very substantial way that affects the reputation of an individual.

Rather than simply correct the web site, which ANR has finally done, the organization, for weeks, refused to change the web site, and instead, attempted to defend its grossly misleading claim. Now that the web site has finally been corrected, it is clear that no damage is done by clarifying the truth. But a lot of damage could be done by misleading many members of the public, especially when you are talking about the ethical character of an individual.

Note that although ANR has now corrected its misleading statement, it still retains its unwarranted personal attack on McCallum, continuing to call "for an ethics complaint to be filed with the Federal Bar," when ANR itself now admits that it was misleading to call McCallum a tobacco industry lawyer.

Were there a "Public Health Bar," I think that a complaint would need to be filed with them about ANR's unethical tactics in trying to denigrate the reputation and malign the character of an individual who has never represented the tobacco industry in his life and who was cleared for service by the very Ethics Office at the Department where he works.

The bottom line is that I simply don't think that the good ends to which anti-smoking advocates are working justifies the use of unethical tactics. And to me, misleading the public, especially when that misleading is being done intentionally to try to discredit an individual, rather than simply as an oversight or careless mistake, is unethical for a public health organization.

Those who know my work will be aware that I have been a strong supporter of bar and restaurant smoking laws that provide a smoke-free environment for all workers. If anything, my personal interest should be in discrediting studies that report a negative economic impact of these laws. But my interest in promoting safe working environments for bar and restaurant workers does not extend so far that I am willing to use, or to condone the use of unethical tactics to accomplish that end.

I would also note that although at first, I thought that the idea of a tobacco industry tracking database was a good one, the ANRF database appears to be far more than simply a tobacco industry tracking database. In fact, it appears to contain documents related to anything that anyone writes against smoke-free legislation, even if there is no tobacco industry connection.

This, in itself, is I think improper. After all, the assumption, to the reader or user of the database (including myself) is that the documents all relate to the tobacco industry. So when David Kuneman showed up in the database with a letter to the editor, I naturally assumed that proved he was working for the industry.

Little did I realize that he was actually writing for himself and expressing his own sincere and heartfelt opinions. It took me hours of intensive research to expose and understand the truth. But obviously, most readers are not going to spend those hours to find out the truth. They are relying upon these anti-smoking websites for their information.

And therefore, I think it is irresponsible of these websites (and the organizations behind them) to provide misleading or irrelevant information in an apparent attempt to discredit anyone who says anything in opposition to the policies that these organizations support.

Keep in mind that I'm writing this as someone who supports smoke-free policies. There is no personal interest that I have in standing up to defend those who oppose such policies. The personal interest I have, however, is in the value of the truth, in the importance of respecting individuals and their opinions and not discrediting and attacking them simply because they disagree with one's own view, and most importantly, in upholding a responsibility to be as accurate as possible when speaking negatively about individuals on a public website.

Knowingly misleading the public in order to try to discredit an individual, even if one considers them an "enemy," is not upholding that responsiblity.


This is the second of a two-part series in which I discuss why I think the proposed FDA tobacco legislation would be a disaster for public health.

In the first part of the series, I discussed how the proposed legislation would provide the tobacco companies with immunity from litigation related to false and misleading health claims regarding potentially reduced risk exposure products (PREPS), thereby opening the market to the introduction of these products and to the government-sanctioned dissemination of unproven health claims to the public.

In contrast to the Campaign for Tobacco-Free Kids, which has claimed that the proposed bills would "protect kids and save lives," my analysis of the legislation concludes that this legislation would actually endanger kids and result in increased mortality. In this second part of the series, I discuss this aspect of my analysis.

Ultimately, I argue, the proposed FDA legislation would result in a government stamp of approval for tobacco products, including potentially reduced exposure products for which there is no substantial evidence of decreased health risk, resulting in an undermining of the public's appreciation of the health hazards of smoking and therefore, to increased smoking initiation and reduced smoking cessation.

The Rest of the Story

A recent research report by J.P. Morgan on PREPS (The Third Innovation: Potentially Reduced Exposure Cigarettes, August 25, 2005) provides an insightful analysis of the potential impact of the proposed FDA tobacco legislation on the public's perceived risk of smoking and on its smoking behavior.

The J.P. Morgan analysis concludes that: "90% of smokers are willing to try a safer cigarette. Overwhelming smoker demand for a reduced risk alternative to conventional cigarettes suggests to us that, over a 30-year period, the PREPS category could become as big as the 'lights' cigarette segment."

The report concludes, based on a survey of smokers, that:
  • 87% of smokers are looking to quit smoking for health reasons;
  • 91% of smokers would be willing to try a lower risk cigarette if it were available;
  • 85% of smokers would be willing to switch brands if necessary to smoke a lower health risk cigarette;
  • 89% of smokers would be more willing to smoke a reduced risk cigarette if it was their current brand; and
  • young smokers may be "particularly receptive" to PREPS.
Clearly, the implication of these research findings is that there is a huge potential market for PREPS because a huge proportion of smokers are concerned about the health effects of smoking and would welcome the opportunity to continue smoking yet face reduced health risks. Inevitably, this means that the introduction of PREPS, just like the introduction of "light" cigarettes, would provide an alternative to quitting smoking and therefore result in smokers switching to PREPS who might otherwise quit smoking.

In addition, the report makes it clear that the FDA legislation would result in a government stamp of approval of tobacco products, including PREPS: "FDA oversight would imbue PREPS with a regulatory 'stamp of approval' and allow for more explicit comparative health claims with conventional cigarettes."

I believe that this perception of a government stamp of approval of tobacco products would contribute to the public perceiving a lower risk of cigarette smoking.

After all, the public seems more likely to get their perception of the risks of smoking from the government (including its public health agencies) than from the tobacco companies. The J.P. Morgan smoker survey revealed that the majority (61%) of smokers do not believe that the tobacco companies tell the truth about the risk of smoking. It concludes that: "Consumers should trust the FDA more than industry health claims."

If there is a high level of consumer trust in the FDA and the FDA regulates tobacco products, then naturally, there is going to be an increased public perception that cigarettes are now safer, regardless of any actions that the FDA may or may not take to regulate the constituents of tobacco smoke and the true impact of that regulation on human health.

In other words, to a certain extent the status quo -- specifically, the absence of FDA regulation of tobacco products -- actually limits the degree to which tobacco companies are able to convince consumers that cigarettes are not as dangerous as currently believed because companies can make no claim that the product is stringently regulated.

But imagine what would happen if the companies could claim, quite accurately, that the federal government has now assumed stringent regulatory authority over the design, ingredients, additives, and constituents of tobacco products. Naturally, there would be a public perception that the product is not as hazardous as currently thought, because it is now under the strict regulation of the federal government (and in fact, under the jurisdiction of the same agency that makes sure that pharmaceuticals and medical devices are safe).

Unquestionably, the erosion of the public's perceived level of the health risk associated with cigarette smoking would lead to an increased level of youth smoking initiation and a reduced level of adult smoking cessation.

In other words, the FDA legislation, if enacted, would endanger kids and likely result in increased mortality by reducing the perceived level of harm of cigarettes, increasing cigarette smoking among both youths and adults because of the reduced level of perceived harm, and increasing the level of cigarette smoking among adults, especially young adults, by convincing smokers who might otherwise quit to instead switch to a cigarette brand whose marketing, approved by the federal government, implies that the product will be safer.

J.P. Morgan estimates that by 2009, sales of PREPS will amount to well over 10 billion cigarettes. There is simply no way that a change in the market of this magnitude will not affect the public's perceived level of risk of cigarettes as a product and the proportion of smokers who quit smoking as opposed to switching to what they perceive as less hazardous cigarette brands.

One might ask the question: what if PREPS really do reduce the risk of disease? Will that not be a major benefit for public health?

The problem is that the best current evidence is that there is no reason to believe that PREPS do or will reduce the risk of disease. A recent review by researchers at the University of Minnesota concluded that: "To date, there is no evidence to suggest that there is enough of a reduction in tobacco toxin exposure with any of the existing PREPs to expect a significant reduction in disease risk, nor do we know the extent of toxin exposure reduction that is necessary to result in reduction of disease."

The Campaign for Tobacco-Free Kids, the main supporter of the FDA legislation outside of Philip Morris, itself stated that "there is no evidence to conclude that any of these new tobacco products actually reduce the risk of disease to consumers."

If the problem is the potential for misleading or unsubstantiated health claims for PREPS, then the status quo (in which tobacco companies cannot market the products for fear of being sued for making these unsubstantiated claims) seems far better a situation then the FDA legislation (under which tobacco companies can make the same unsubstantiated claims becuase there is no longer any fear of litigation).

This problem is compounded even further by the failure of the proposed FDA legislation to provide adequate measures to ensure that FDA-approved reduced exposure products will not make unsubstantiated health claims.

The legislation contains a loophole, highly sought after by Philip Morris and agreed to by the Campaign for Tobacco-Free Kids, which allows products to be marketed to the American people even if there is not adequate evidence that they will be safer. The only hitch is that the cigarette companies can only claim that the product is a "reduced exposure" product, rather than a "reduced risk" product.

But what does it matter? To the average consumer (and even to the way-above-average consumer), the claim of reduced exposure is naturally going to imply that the product is safer, even if the cigarette companies do not directly make such a claim.

Why in the world did the Campaign for Tobacco-Free Kids agree to this highly-sought-after loophole by Philip Morris?

I can't answer that question. All I can do is reiterate what I said before: With "enemies" like the Campaign for Tobacco-Free Kids, Philip Morris does not really need friends - the Campaign is doing its bidding for it in the halls of Congress.

And the result of that bidding, if successful, would be the erosion of the perceived public perception of the harms of cigarette smoking, largely due to a perceived government stamp of approval of tobacco products and to the tobacco company's newly-found ability to publicly disseminate the fact that tobacco products are now stringently regulated by the federal government.

You can't erode the public's perception of the harms of cigarettes without also eroding the public's health. And ultimately, that is what I think the FDA legislation will do.

FDA Tobacco Legislation: A Public Health Disaster - Part I: IMMUNITY

In this two-part series, I will discuss why I think the proposed FDA tobacco legislation would be a disaster for public health.

In contrast to the Campaign for Tobacco-Free Kids, which has claimed that the proposed bills would "protect kids and save lives," my analysis of the legislation concludes that this legislation would actually endanger kids and result in increased mortality. That aspect of my analysis will be discussed in the second post in this series.

Here, I discuss why I think the FDA legislation would be a disaster for public health in terms of social justice and individual legal rights. In essence, I believe that the legislation would largely provide immunity for the tobacco companies from the most threatening potential litigation -- that which involves claims relating to product design, product constituents, product safety, potentially reduced exposure products, and misleading or inaccurate health claims as well as other aspects of product marketing. Clearly, I think, the bulk of potential litigation against the tobacco companies would be preempted by the FDA legislation.

This post, however, focuses on what I feel is the most threatening potential litigation to the industry in the future and the one about which I believe the industry is most concerned -- claims related to potentially reduced exposure products (PREPS).

Ultimately, I argue, as bad as people think the status quo might be, the FDA legislation would be far worse.

The Rest of the Story

A recent research report by J.P. Morgan on PREPS (The Third Innovation: Potentially Reduced Exposure Cigarettes, August 25, 2005) provides an insightful analysis of the legal issues that cigarette companies currently face in the development and marketing of PREPS, as well as how those legal issues would be resolved by enactment of the proposed FDA legislation.

The J.P. Morgan analysis concludes that: "Significant US legal risk surrounds PREPS technology. Without FDA regulation, potential future US legal risk is balanced between: 1) failure to make the health benefits of PREPS available to smokers; and 2) making misleading or unproven health claims about PREPS."

In other words, it is the status quo -- specifically, the absence of FDA regulation of tobacco products -- that is actually the limiting factor in the inability or reluctance of tobacco companies to proceed wholeheartedly with the development, introduction, and marketing of PREPS.

This is because of the fear that cigarette companies might face litigation based on claims that they made misleading or unproven health claims about these potentially reduced exposure products. Because it would take years of epidemiologic research after the introduction of these products to provide any meaningful evidence that there is a health benefit from these products compared to existing cigarettes, it is virtually impossible for the cigarette companies to make any health claims regarding PREPS without facing the risk of litigation based on a claim that they are making misleading or unproven health claims.

After all, if they can't prove a health claim until they market and study a cigarette for 10-20 years, and they can't market a PREP until they can prove the health claims, then they are in a complete bind.

But the FDA legislation would bail them out. How? By regulating the introduction and marketing of PREPS, including the conditions regarding the cigarette companies' ability to make various types of health claims, the proposed FDA legislation would preempt any claims against the industry related to PREPS, and would therefore effectively provide immunity for them, allowing them to proceed with the widespread introduction of PREPS into the market, both nationally and internationally.

According to the J.P. Morgan report: "One of the main obstacles facing PREPS today is the industry's inability to clearly and credibly communicate reduced risk attributes to smokers. No agency or body has the authority to assess health claims made by tobacco companies or set standards for what constitutes a reduced risk to smokers. This means that tobacco companies currently trying to communicate low health risk attributes of PREPS do so at significant risk. ...

FDA oversight would imbue PREPS with a regulatory 'stamp of approval' and allow for more explicit comparative health claims with conventional cigarettes. ... In our view, FDA regulation would effectively insulate tobacco companies from any potential PREPS-related liability claims. This is because regulation would shift responsibility from the tobacco companies to the government, which would approve the validity of health claims on PREPS."

It is critical for public health groups to understand that it is the ability to make actual or implied health claims about PREPS that is most important to the industry's incentive to market these products. They can only be marketed effectively based on the industry's ability to communicate to potential customers, at some level, the claim that these products represent an improvement in health risk compared to conventional or existing cigarettes.

So in many ways, the status quo -- the lack of FDA regulation of tobacco products -- is the single thing that is holding up the widespread introduction and marketing of PREPS, and with that, the widespread use of what would have to be, by definition, unproven and undocumented health claims.

I think it is also important for public health groups to understand that the market potential for PREPS is enormous and these products could be disastrous to the public's health by greatly undermining efforts to encourage smokers to quit smoking. Instead, it is very likely that smokers who would otherwise attempt to quit entirely would switch to PREPS because of the belief (true or false) that use of these products would reduce their disease risk (see my second post of this series for a more detailed discussion of this issue).

In fact, the J.P. Morgan analysis included a survey of smokers which demonstrated that 91% would be willing to try a lower-risk cigarette and 85% would be willing to switch cigarette brands if it would lower their health risk.

The potential impact of PREPS is so profound that J.P. Morgan actually estimated that just a 1% increase in cash flow growth from PREPS would result in a 15% increase in valuation for the two major international cigarette companies viewed as most likely to introduce PREPS - Altria and British American Tobacco (linked to the United States' second leading tobacco company - Reynolds American - through R.J. Reynolds' merger with BAT's Brown & Williamson).

According to the report: "We believe that PREPS could represent the next phase of product innovation, the first in over 30 years. PREPS technology, if applied to existing international brands, looks to us likely to further open up market share gaps between the top two global companies and the rest of the market.

In our opinion, the most important medium-term upside for PREPS is a nation-wide US launch of a PREPS cigarette product under an existing premium brand name; we think this could transform the economics of the global PREPS segment. However, the roadmap to unlocking the market is in the hands of the US Congress, which, to date, has failed to act on the issue of granting the Food & Drug Administration (FDA) regulation over the tobacco industry."

Ironically, it is precisely the lack of FDA regulation of tobacco products that is the only thing holding back the tobacco companies from a huge global market expansion, one that would likely undermine decades of public health campaigns by convincing large numbers of smokers, rightly or wrongly, that their health risks would be lowered by switching to PREPS.

Just as the introduction of "light" cigarettes is believed to have resulted in a large number of smokers switching to these products rather than quitting smoking, the introduction of PREPS would undermine public health efforts to encourage individuals to take the action that would be most beneficial for their health - quitting smoking.

Even more ironically, the key player in the global expansion of the cigarette market, the key facilitator of this expansion which is using every tactic at its disposal to make it all possible, is none other than the Campaign for Tobacco-Free Kids, an alleged public health and anti-smoking group.

To me, even more important than the effects of the FDA legislation on the opening up of a new market of government-sanctioned but still unproven implied health claims is the way in which this legislation would take away individual legal rights. There would simply be no way for consumers to seek justice for any wrongs done to them or damage suffered as a result of any misleading or unproven health claims regarding the introduction and marketing of PREPS. And I just don't think it is ethical to sign away the individual rights of generations of future smokers in order to try to obtain largely unsubstantiated public health gains.

In essence, not only is the Campaign for Tobacco-Free Kids working to open up global markets to the introduction of a new cigarette innovation that kills people, but does so by making them think they are protecting their health, but it is also working to take away the legal rights of American citizens to hold corporations accountable for damages suffered as a result of using their products.

With "enemies" like the Campaign for Tobacco-Free Kids, the major cigarette companies do not really need friends - the Campaign is doing their bidding for them in the halls of Congress.

And the result of that bidding, if successful, would be the global expansion of the cigarette market, the third major cigarette product innovation by the industry in the past half a century, the provision of immunity to cigarette companies to introduce and market a broad new class of deadly products with no fear of liability, the widespread introduction and sanctioning by the government of unproven and undocumented health claims that are sure to mislead millions of smokers, and ultimately, needless deaths due to the undermining of public health efforts to encourage smoking cessation, emphasize the deadly effects of cigarette smoking, and ensure that the public is not led to believe that there is any safe cigarette.

Monday, October 24, 2005

Master Settlement Agreement May Have Provided Immunity for Tobacco Companies

An article in the Florida Coastal Law Review warns that the Master Settlement Agreement (MSA) between 46 states and the major tobacco companies may have provided substantial tort immunity for the tobacco companies, presumably an unintended effect of the Attorneys General signing this contract (see: Reeder HC. The 'law of tobacco' is a major contributing factor that hampers effective resolution to the country's tobacco problem. Florida Coastal Law Review 2004 (Fall); 6(1):17-175).

Writing in the Fall 2004 issue of the journal, Cleveland-based public interest law attorney Harold C. Reeder writes that: "the tobacco settlement may have given cigarette manufacturers some form of tort immunity. This is in effect what the appellate court in the Engle class action determined in overturning the $145 billion punitive award, holding that the tobacco settlement precluded such award. If the appellate court in Engle is correct on this issue, then this gives even more ammunition to those who criticize 'policymaking through litigation' since this preclusion of punitive damages was not clear at the time the settlement agreement was announced."

The Rest of the Story

While the MSA was billed by the Attorneys General who signed it as precluding only state-based lawsuits against the tobacco companies and not providing protection from private class actions or large punitive damage awards, this very well may not be the case. The Florida District Court of Appeals ruled that the MSA does in fact preclude punitive damage awards in private class action litigation where the major claims of the plaintiffs are similar to those of the states (e.g., fraud, conspiracy, and the sale of a defective and addictive product):

"The punitive award is precluded by the settlement agreements which resolved all claims asserted by the states, as well as the final judgment resolving the state of Florida’s suit against the tobacco industry, which expressly included claims for punitive damages. ... The claims for punitive damages in the Florida v. American Tobacco Co. case and in this action are based on the same alleged facts. The punitive-damage claims in both cases addressed the same alleged misconduct and the same public interest. The plaintiffs, as private parties, do not have a 'right' to punitive damages; punitive damages are awarded solely as a matter of public rights or interests, in order to serve the public policy of punishment and deterrence. ... Accordingly, as a matter of law, Florida's settlement and release, and the res judicata effect of the resulting final judgment, preclude the plaintiffs' punitive-damage claims here."

While it is not yet clear whether the Florida Supreme Court will agree with the appellate court's reasoning and it is not clear whether courts in other states would make similar findings, as of right now there is strong reason to believe that the MSA has indeed given the tobacco companies a large measure of immunity from private class action claims that are similar to those made by the states (which are, of course, similar to those being made in the majority of tobacco litigation throughout the country).

This provides more evidence to back up my earlier assertion that the Master Settlement Agreement was the worst public health blunder of my lifetime.

Now, not only have the state Attorneys General who signed the MSA released all state claims against the companies, but they have apparently also released, for all intents and purposes, many (perhaps most) private claims against the companies as well.

My first inclination is to close this post by chastising the AG signatories to the MSA for this public health blunder. Instead, I will close by congratulating the tobacco company attorneys who negotiated the MSA for their brilliance in taking advantage of the monetary and political greed of public officials who pretended to be primarily interested in the public's health. They knew that the billions of dollars would be too much to pass up, and they made them pay for every cent they received.

Friday, October 21, 2005

R.J. Reynolds Suggests that MSA Money be Allocated for Tobacco Control Before Raising Cigarette Taxes Further

In a letter to the editor of the Springfield (Missouri) News-Leader, Brennan Dawson, senior vice president for government relations for R.J. Reynolds Tobacco Company, argues that smokers already bear a large burden of making up for the state's budget shortfalls and that money that is already essentially paid by smokers (as part of price increases to cover the costs of the Master Settlement Agreement) should be better allocated, rather than continuing to raise cigarette taxes to cover necessary state expenses.

The letter was in response to an editorial supporting a proposed ballot initiative that would increase the cigarette tax by 80 cents per pack and allocate a substantial portion of the revenues for programs to prevent smoking, provide services for those who want to quit smoking, and help cover the costs of medical treatment for smokers.

While not explicitly advocating for increased MSA expenditures for tobacco control, Dawson did point out that "the state spent less than one-half of its MSA money on tobacco control" and that "more than 50 percent of that money went to budget shortfalls and general purposes." So in suggesting that "a wiser course of action would be to better allocate the money the state already gets from smokers before resorting to an unfair and discriminatory tax on a minority of the state's residents," Dawson may well be suggesting that more of the MSA funds be spent on tobacco control programs. The argument, it seems, is that desired money for smoking-related programs should come from the existing MSA payments, rather than from a new increase in cigarette taxes.

The Rest of the Story

While I disagree with this argument in relation to the proposed policy in Missouri, I think it very clearly expresses my opinion regarding the proposed cigarette tax increase in Massachusetts.

First, here is why I disagree with the opinion in relation to the Missouri proposal:

That proposal is a ballot initiative - a proposal being generated by (and if approved, approved by) the citizens, not by the legislature. If citizens are disappointed with the way money from the MSA is being allocated, then it is appropriate for them to attempt to remedy the situation by generating a source of funds for programs to prevent smoking-related diseases that cannot be raided by politicians. Citizens do not have control over the way the legislature votes, so it is not enough to simply suggest that the legislature re-allocate the funding. The citizens do not control that decision.

In addition, because a substantial portion of the funds will be allocated to directly provide services for smokers, including cessation programs as well as medical services, I think it helps mitigate the unfair and discriminatory nature of the policy proposal.

Furthermore, the proposal's intent is clearly not to balance any budget on the backs of smokers, but to improve the public's health by preventing smoking-related diseases and to restore funding for tobacco control programs that the legislature inappropriately diverted from that purpose in raiding the MSA funds for general budget purposes. In that sense, the proposal is justified from a public health perspective.

Now, here is why I agree with Dawson's argument as it relates to the proposed cigarette tax increase in Massachusetts.

In contrast to the proposal in Missouri:
  • the Massachusetts proposal is a legislative one; it was generated by the same legislators who decimated the state's tobacco control program and diverted funding that had been allocated by the voters to programs to prevent smoking-related diseases;
  • the Massachusetts proposal would tax smokers for the sole purpose of raising money to close budget shortfalls (in this case, to plug up a hole in the state's ability to cover Medicaid payments for low-income families);
  • the Massachusetts proposal would not allocate the resources derived from the tax on smokers to provide any services specifically for them, making it an unfair and discriminatory way of raising needed revenues; and
  • the clear intent of the Massachusetts legislature is to balance the budget on the backs of smokers since that is the most politically easy solution to the state's budget woes.
So while I disagree with Dawson's argument in the case of the proposed cigarette tax increase in Missouri, I agree with the very same argument in the case of the proposed cigarette tax increase in Massachusetts.

In fact, I think that Dawson's arguments are right on the mark with respect to what is happening here in Massachusetts. There is plenty of money available to restore funding for the very same programs to prevent smoking-related diseases that the voters clearly intended to support when they voted to approve the Question 1 ballot initiative in 1992. Specifically, the Question 1 ballot initiative funds which the legislature has increasingly raided over the past 12 years, are plentiful enough to both restore the tobacco control program (including a high level of services for smokers) and to expand Medicaid to low-income families who are not presently covered. And that is before even touching the money that the state gets from the Master Settlement Agreement.

In other words, there is simply no excuse for the legislature, if it has any interest in public health at all, not to restore tobacco control funding that the voters have mandated. And thus, there really is no need for yet another increase in the cigarette tax. At this point, additional revenue that is needed should come first from the wealthiest citizens and corporations in the state, not from the poorest residents.

Dawson is exactly right - the legislature needs to better allocate the existing funds in Massachusetts first, not simply tax and tax smokers to cover the budget shortfall. Such a policy is indeed unfair and discriminatory, it is not justified on any public health grounds, and it in fact hurts the interests of tobacco control in the state by bringing to near zero the possibility that state legislators will face any significant pressure to restore the funding that they have raided from Question 1 for their own politically-expedient purposes.

What I hope anti-smoking advocates will begin to see is that there is a depth to public health policy analysis. Things are not necessarily black and white. While I think that the proposal to pursue a ballot initiative in Missouri that would increase the state's cigarette tax and allocate a substantial portion of the revenues to promote a vital public health goal as well as to provide services for smokers is appropriate and is justified on public health grounds, I think that the proposal to balance the budget in Massachusetts by raising cigarette taxes is unfair, discriminatory, and not justified on any public health grounds.

This suggests that what Jacob Sullum termed anti-smoking organizations' "knee-jerk support" for cigarette taxes may be inappropriate. To me, it is not as simple as stating that I support or do not support higher cigarette taxes. A public policy such as this one is complex and involves a number of considerations, including the intent of the proposal, the proposed uses of the revenue, and the actions that the legislature has or has not taken with regard to tobacco control policy and funding in the state.

Thus, when an anonymous blogger (sorry - the comment has been deleted after I switched to a new comment service so I cannot link to it) attacked me as no longer being a public health advocate because I put forth an argument against a cigarette tax increase proposal, it illustrated the fact that many anti-smoking groups and advocates have simply drawn a line. Any cigarette tax is a good one, regardless of anything.

For this reason, I shudder when I see a general statement like that by the Campaign for Tobacco-Free Kids, which declared that: "Increasing cigarette taxes is a WIN, WIN, WIN solution for states."

It is not necessarily a win, win, win solution. Certainly, for the most heavily addicted smokers, it is not a win situation. For the prospects for increased funding of tobacco control programs, it is not necessarily a win situation. In fact, it could be a complete decimation of any chance of obtaining a meaningful tobacco control program. For the value of fairness, it is not necessarily a win situation. And for the value of the integrity of public health policy, it is not necessarily a win situation.

The rest of the story suggests that the issue of raising cigarette taxes as a public health measure is not a straightforward one. There are many factors that need to be considered. I hope that by elucidating what I think are the most critical ones, I can contribute to a richer and more appropriate evaluation of cigarette tax policies by public health organizations and advocates.

As far as what R.J. Reynolds is arguing, I disagree...
...and I wholeheartedly agree.

Thursday, October 20, 2005

L.A. Times Editorial on DOJ Decision Gets it Right, But Doesn't Go Far Enough

In an editorial yesterday entitled "The Rule of Law Prevails," the Los Angeles Times argued that the Supreme Court's refusal to accept for review the D.C. Circuit Court of Appeals' ruling that disallowed disgorgement as a remedy in the DOJ's civil RICO case against the tobacco companies was appropriate and just, as it allows the rule of law to govern the case.

According to the editorial: "The Justice Department's effort to recoup the industry's past profits in a civil suit brought under the Racketeer Influenced Organizations Act was a classic example of overreach. ... Congress clearly meant for the so-called disgorgement of ill-gotten gains to be a remedy available to the prosecution only in criminal RICO cases, where the government has to prove its case beyond a reasonable doubt before a jury. In its civil case against the cigarette makers, the government faces a lower burden of proof. As the appellate court rightly ruled, under the RICO law, remedies in civil cases are limited to forward-looking behavior. So the government can seek billions from the tobacco companies to fund new smoking cessation programs, for example, but it cannot attempt to recover past profits."

The Rest of the Story

I think the L.A. Times expresses a sentiment that anti-smoking advocates would be wise to pay attention to: that there is a value we place in society on the rule of law prevailing, even when our gut feelings and emotions may wish for a different outcome.

Many anti-smoking advocates are angry (and appropriately so) at the tobacco companies for their actions over the past five decades which have led to the addiction of smokers and many thousands of deaths. And they would like to see justice served, which is also an entirely appropriate sentiment.

However, I think it's important to realize that justice is not served and will not be served by the inappropriate application of the law against the tobacco companies or by the improper interpretation of the law by the courts in order to help society achieve its considered judgments against the industry, no matter how appropriate those judgments may be. Public figures, and that includes public health practitioners, must seek remedies to this problem that are consistent with the law of the land.

So the sentiment that the L.A. Times is expressing is also an entirely appropriate one: that under the RICO law under which this case is being tried, it is very clear that forward-looking civil remedies are required; thus, disgorgement of past profits is not allowable and by not reviewing the appellate court's decision at this time, justice has been served (at least temporarily - since the Court could agree to review the decision at a later date).

Even people who we are absolutely convinced are criminals are entitled to a fair trial. Even mass murderers are entitled to the defenses that the law has to offer. It's an important part of our system of justice. In fact, in many ways, this is what ensures freedom and individual rights in a democracy.

Look at the concerns that are being expressed over the trial of Saddam Hussein. Here is a guy who is apparently so heinous that we justified killing nearly 2,000 U.S. soldiers to get him out of power, and the only concern that is being expressed about his trial is that not enough safeguards are being taken to ensure that he has a fair trial and that his rights as a defendant are not violated. Human Rights Watch is observing every aspect of the trial and was extremely "troubled" by what was going on.

That is distasteful to me. It makes me sick to think about. Here we have an individual who committed the worst imaginable crimes against humanity and killed thousands of his own people and the only thing we're worried about is that we are not too quick to sentence him. Nevertheless, it is a necessary measure to maintain the integrity of human rights throughout the world.

If public health practitioners and anti-smoking advocates are truly interested in maintaining the integrity of our legal system, the system by which citizens are able to pursue justice, then I think they should show more of an interest in making sure that the remedies they are seeking are appropriate under the law, and less of an interest in trying to extract the highest possible penalties they can think of asking for when it has been made very clear to them that such penalties are not permissible.

I think the L.A. Times is right on track in its opinion, but I don't think it went far enough. While it is true that according to the appeals court, remedies in civil RICO cases must be forward-looking, that is certainly not a sufficient criterion. They also must serve to prevent and restrain future RICO violations.

Funding new smoking cessation programs does not do that. Thus, it is not allowable under RICO. The government cannot "seek billions from the tobacco companies to fund new smoking cessation programs." It is simply not consistent with the law.

One minor note before concluding: I think the L.A. Times probably made a little too much out of the Supreme Court's failure to review the case at this time. I don't think that decision necessarily reflects a feeling that it is very unlikely that the Court would overturn the appellate court's decision. I think it's entirely possible that the Court simply has no interest in considering this issue in the middle of the case, before there has even been a ruling from the District Court. Ultimately, if the Supreme Court upholds the Appeals Court decision, then I think the rule of law will have prevailed. The final outcome is net yet clear.

The rest of the story suggests that despite how strongly anti-smoking advocates may feel about the actions of the tobacco companies, our system of justice still requires that remedies be sought which are consistent with the law of the land. As much as we might like to see the tobacco companies punished, it is inappropriate to seek punishment that is not allowable under the law, and ultimately, it undermines, rather than enhances, our investment in justice.