Thursday, May 04, 2006

IN MY VIEW: Anti-Smoking Agenda Driving Nail of Death Through Tobacco Litigation

Although anti-smoking groups may not be aware of it, their actions to promote such policies as smoker-free workplaces, widespread outdoor smoking bans, bans on smoking in cars, and now --– criminalization of smoking around children and classification of smoking around children as a form of child abuse --– are pretty much going to put an end to the era of multi-million and multi-billion dollar decisions against the tobacco industry in litigation.

If I were a tobacco industry attorney or executive, I would be breathing a lot easier now than several years ago, largely thanks to the recent actions of the anti-smoking movement.

Just six years ago, tobacco litigation was at its peak. Public opinion was riding high against the tobacco companies. The public was just becoming aware of secret documents which revealed decades of tobacco industry wrongdoing: manipulation of nicotine levels, deception of the public, undermining public health efforts to educate people about the hazards of smoking, secret plans to target youth smokers, and more.

The largest punitive damages judgment ever in a U.S. courtroom --– a $145 billion jury verdict against the major tobacco companies in the Engle case --– marked the peak of negative public opinion against the tobacco industry. The jurors in the Engle case made it clear that they viewed smoking as a problem largely attributable to an industry that practiced fraud and deception in marketing its products. They were unconvinced that individual smokers need to be held accountable for their own smoke-induced injuries, since they started smoking as teenagers, became addicted to smoking, and were lied to about the health effects of the product.

Several more multi-million dollar decisions against Big Tobacco followed Engle. It seemed that nothing could be better for the tobacco control movement. Public opinion was exactly where we needed it in order to be widely successful in tobacco litigation. No --– we weren'’t winning every case, but we were winning enough to make near-constant headlines and to be in the driver'’s seat in terms of pressuring the industry to change its behavior.

The Rest of the Story

But then, something went terribly wrong. Anti-smoking groups, because of their seeming inability to be satisfied with bona fide public health interventions to address the tobacco epidemic, turned the movement into a crusade against smokers.

In the past year, in particular, things have fallen apart.

All of the sudden, anti-smoking groups began to argue that smokers are indeed to blame for tobacco-related morbidity and mortality in this country. The message began emanating from these groups, loud and clear, that smokers are irresponsible individuals who are making intentional poor decisions to hurt other people in order to satisfy their own sense of personal pleasure. They are hurting people, not just through secondhand smoke, but through forcing them to pay the health care costs related to their stupid decisions.

As such, smokers need to be charged extra to work, need to be fired from their jobs if they fail to quit smoking, or need to be disqualified from seeking employment in the first place.

Smokers who smoke around other people need to be fined for their behavior, treated as criminals, or treated as child abusers.

It was no longer enough for smokers to show consideration by smoking outside, so that workers potentially exposed to secondhand smoke for 40 or more hours per week would no longer be exposed. Or for smokers to be asked not to smoke outdoors in places where nonsmokers were confined and could not avoid exposure to the smoke. Now, anti-smoking groups began demanding that smoking be banned in all outdoor places, even streets, sidewalks, and parking lots, if even a single nonsmoker might be transiently exposed.

And the result of all of this is a noticeable change in public opinion as well as a change in the media'’s framing of the smoking problem. Attention has turned from the tobacco industry to the individual smoker as the source of the problem. In many ways, the tobacco companies have been let off the hook.

Because now, apparently, the anti-smoking movement is going to blame the whole problem on the smokers themselves. This is all their fault. The high health care costs that we are paying? It'’s the smokers'’ fault. Childhood infections and asthma? It'’s the smokers'’ fault. People being unable to quit smoking despite multiple attempts? It'’s the smokers'’ fault. People starting to smoke as teenagers despite indifference towards the potential health effects of the behavior? It'’s the smokers'’ fault. People continuing to smoke because of their misunderstanding of the relative risks of smoking compared to other people? It'’s still the smokers'’ fault.

By changing the focus of the anti-smoking movement away from the tobacco industry and towards the individual smoker as the villain, groups like Action on Smoking and Health (ASH) and others which have supported this agenda have succeeded, I believe, in taking the heat off the tobacco industry. Instead, the individual smoker is bearing the burden of responsibility for this problem.

And more importantly, the increasing public portrayal of the problem is one for which the individual smoker needs to be punished through a variety of mechanisms: denial of employment, firing from their jobs, surcharges for working, criminal penalties for smoking around others, and now --– being publicly compared to child abusers.

I truly do not believe that the current public opinion climate makes possible any significant chances of more than a few scattered victories in tobacco litigation at this point. Societal opinion has been altered significantly from a view in which the tobacco companies were absolutely despised and seen as being responsible for the smoking problem because of their fraudulent actions to a view in which smokers have now become social pariahs: they are now the enemy and it is them upon which our punishment must be focused.

The public is so focused, I believe, on punishing smokers rather than punishing the tobacco companies, that I do not think there is any new serious litigation risk for the industry in the current climate (of course, the decisions that have already been rendered are a real threat --– especially Engle if the appellate court ruling is reversed).

The main reason why I believe the string of successful tobacco industry defenses in litigation was finally cracked is that the tobacco documents enabled plaintiffs lawyers to convince juries that the companies bear ultimate responsibility for the harms caused by their products, rather than the smokers who had been manipulated, seduced, and addicted.

The current focus of the anti-smoking agenda feeds perfectly into the tobacco industry's defense strategy. In essence, we in the anti-smoking movement have now become the best public relations machine the tobacco industry could ever hope for.

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