An anti-smoking group in Scotland yesterday defended the exemptions in the Scottish smoking ban, which goes into effect on March 26, suggesting that there is a good reason behind each of the exemptions in the ban.
According to an article in the Scotsman, ASH-Scotland responded to questioning of the justification behind certain smoking ban exemptions by stating: "The very few exemptions have been carefully debated and are there for good reasons."
The smoking ban, which will eliminate smoking in almost all workplaces, including restaurants and pubs, provides exemptions for "designated rooms in adult care homes," "designated rooms in psychiatric hospitals," and "detention or police interview rooms."
The Rest of the Story
I don't see any way that a public health advocate who supports a ban on smoking in workplaces and public places can possibly justify exemptions that would allow smoking in nursing homes, psychiatric hospitals, and police stations. And if there are good reasons to ban smoking in pubs, then I certainly do not think there are good reasons not to ban smoking in these other indoor workplaces, where both workers and "clients/patients" are present for long periods of time and cannot escape exposure to the smoke.
If secondhand smoke is so hazardous that we cannot allow pub workers to be exposed (or patrons at pubs), then how could it be safe for confined elderly people, mentally ill people, or police officers to breathe?
Is this not discriminating against the elderly, the mentally ill, and police officers in making them not subject to the same health protection that other citizens are offered? Does this not suggest that we are somehow deeming these individuals less worthy of health protection?
Don't the mentally ill deserve the same level of protection as the rest of us, and isn't it degrading to them to suggest that they don't?
While I am not necessarily arguing here either for or against any particular exemptions in the Scotland law, what I am trying to point out is that it is simply inconsistent public health policy, and quite unjustified on public health grounds, to provide protection to some people but to deny that protection to others, especially when the group you are denying protection to is largely unable to defend themselves.
Many mentally ill and elderly residents of nursing homes and psychiatric hospitals are not competent enough to be able to protect themselves, or to lobby for their own health protection. Is it fair and just to deny them health protection that we as public health practitioners are arguing that everyone else deserves?
My point is simply that no matter how one feels about smoking bans (whether one believes that smoking bans anywhere are unjustified or that smoking bans everywhere are justified), it seems one would have to agree that this policy makes no public health sense.
I therefore question the contention that the exemptions in the smoking ban are justified and there for good reasons. They are not there for any possible public health reason. They make no public health sense, are unjustified from a public health perspective, and result in a public health policy that is inconsistent, with unequal application of public health protection to different groups.
The law creates an unlevel playing field, discriminates against certain (largely helpless and politically less powerful) groups in denying them health protection that is afforded to everyone else, and basically cannot make up its mind whether secondhand smoke is indeed harmful or not.
I would add that this law bans smoking in any enclosed outdoor area, including, it appears, an outdoor smoking area!
Even if 49% of an outdoor smoking area is open, you cannot smoke in it. But you can smoke up a storm when being interrogated by the police to find out why you were smoking outdoors in a smokers' shelter. And you can also smoke when sent to a psychiatric hospital because the blatant hypocrisy of the smoking ban's provisions makes you mad. And you can't smoke in the cab or van that takes you to your nursing home, but as soon as you get there, light up and enjoy!
I'm sorry, but there is no way that an anti-smoking group can or should attempt to defend the rationality of these smoking ban exemptions.
And it is for this reason that I question the sincerity, as well as the lack of consistency, of the anti-smoking groups that are defending these exemptions.
I have no problem with these groups simply admitting that the policies are inconsistent, that the stupidities within the policy are present because they were needed for political reasons (to garner enough votes or support to get the policy through).
But don't pretend that there is some logical, reasonable public health rationale for forcing people to be involuntarily exposed to a hazard that you yourself have declared is so toxic and so hazardous that you cannot even allow smokers to be exposed to in outdoors areas that are no more than 49% open.
That is not, in my view, being sincere. That's simply not being forthright enough to admit that the exemptions are the result of political compromises, not any sort of sound, public health reasoning.
Friday, February 10, 2006
Thursday, February 09, 2006
Anti-Smoking Group Urges Cities to Ban Smokers from Employment
A prominent anti-smoking group -- Action on Smoking and Health (ASH) -- is urging cities to ban smokers from employment in order to save on health care costs. In a press release issued today, ASH announced that it was intervening in Melbourne (Florida) to encourage the city to throw job applications from smokers in the trash, regardless of any other individual qualifications they may have for employment with the city of Melbourne.
According to the press release, entitled "Melbourne May Ban Off-the-Job Smoking by Employees; ASH Urges City to Act to Save 25% or More in Smoking-Related Costs," a workplace smoker ban is effective and appropriate because it would save money for the city as well as end "discrimination" against "the overwhelming majority of workers who have wisely chosen not to smoke by forcing them to assume -- directly or indirectly -- the costs of smoking."
The Rest of the Story
I consider February 9, 2006 to be an important date in tobacco control history. It marks the date that the anti-smoking movement officially went on record as supporting bans on smokers in the workplace.
My previous post, in which I suggested that ASH was encouraging employers to fire smokers, was met with some skepticism about whether ASH was actively encouraging such policies or merely trying to educate the public about the legality of doing so. It is now eminently clear that ASH was, and is, actively promoting such policies, and going so far as to intervene in the public policy deliberations of employers: in this case, the city of Melbourne.
While ASH is the only anti-smoking group that is actively promoting these policies, I am aware of no U.S. anti-smoking group that has publicly opposed these policies. Thus, as far as I'm concerned, the anti-smoking movement in the U.S. is officially on record as supporting these policies.
Those who are familiar with my commentaries know that I support workplace smoking bans. But I do not support workplace smoker bans. And there is a huge difference.
The ultimate irony is that ASH calls the fact that nonsmokers may bear increased health care costs because of smokers "discrimination," yet fails to appreciate that the policy it is proposing is actually a form of institutionalized employment discrimination.
Frankly, it is not discrimination (and it is an insult to the term discrimination) to use that term to describe the increased burden of health care costs that fall on nonsmokers. One could just as easily argue that thin people are discriminated against because they bear the costs of treating illnesses among fat people, or that vegetarians are discriminated against because they subsidize the costs of treating people who eat high-fat diets, or that non-bungee-jumpers are discriminated against because they have to subsidize the health care costs of treating bungee jumping injuries.
But it is truly employment discrimination to refuse to consider applications from smokers simply because of the category to which they belong, rather than based on any individual qualifications for employment (which cannot possibly be considered if their applications are immediately thrown in the trash based solely on the fact that they admit smoking off-the-job).
In my workplace, it is indisputably true that the major source of increased health care costs are employees, like myself, who have young children. We are sicker more, especially during the winter, and my co-workers without young children are bearing the burden of our increased illness.
By ASH's reasoning, my co-workers without young children are being discriminated against, and I should be fired. And I guess I should have been fired 4 years ago, when my first child was born. Or maybe they should have asked if I planned to have children when I first applied, and thrown my application in the garbage right then and there. Then all these problems and the "discrimination" it has caused could have been avoided.
It's getting really hard for me to understand what ASH is trying to do. They want smokers to be banned from employment. They want smokers not to be allowed to smoke anywhere but in the privacy of their own homes, and then only if they are not foster parents.
The only thing that makes sense to me in explaining what ASH is doing is that there is a huge amount of underlying hate of smokers, and that ASH apparently feels that smokers need to be punished for their "poor choices."
I challenge ASH to explain why they are not taking the lead in supporting legislation to deprive smokers of medical treatment. Such a move would save an incredible amount of money, would end the terrible discrimination that nonsmokers have to face by subsidizing health care costs for smokers, and would be a huge incentive for smokers to quit smoking and for nonsmokers not to start. It would be an incredibly effective public health intervention that would save lives and money. I don't see how ASH, by its very own reasoning, could possibly justify not supporting such a policy.
The logical endpoint of what ASH (and in the absence of any opposition - the anti-smoking movement) is actively promoting is the creation of second-class status for smokers. They are to become a group that is not capable of obtaining gainful employment and making a living to support themselves and their families.
And you know what? In the long-run, this would only serve to increase socioeconomic disparities in health and to increase smoking. But even if it didn't, it's just plain wrong.
The rest of the story is that a prominent anti-smoking group is actively promoting discrimination against smokers in the workplace, urging cities and employers across the nation to fire existing smoking employees and not to hire any smokers in the future. And the rest of the U.S. anti-smoking groups are sitting around quietly watching this happen.
Even if a single other anti-smoking group in the U.S. condemned these policies, I think it would pretty much bring an end to this nonsense. But most importantly, it would put employers and policy makers on notice that while creating smoke-free workplaces is an important public health goal, creating smoker-free workplaces is unjustified, intrusive, discriminatory, and improper.
According to the press release, entitled "Melbourne May Ban Off-the-Job Smoking by Employees; ASH Urges City to Act to Save 25% or More in Smoking-Related Costs," a workplace smoker ban is effective and appropriate because it would save money for the city as well as end "discrimination" against "the overwhelming majority of workers who have wisely chosen not to smoke by forcing them to assume -- directly or indirectly -- the costs of smoking."
The Rest of the Story
I consider February 9, 2006 to be an important date in tobacco control history. It marks the date that the anti-smoking movement officially went on record as supporting bans on smokers in the workplace.
My previous post, in which I suggested that ASH was encouraging employers to fire smokers, was met with some skepticism about whether ASH was actively encouraging such policies or merely trying to educate the public about the legality of doing so. It is now eminently clear that ASH was, and is, actively promoting such policies, and going so far as to intervene in the public policy deliberations of employers: in this case, the city of Melbourne.
While ASH is the only anti-smoking group that is actively promoting these policies, I am aware of no U.S. anti-smoking group that has publicly opposed these policies. Thus, as far as I'm concerned, the anti-smoking movement in the U.S. is officially on record as supporting these policies.
Those who are familiar with my commentaries know that I support workplace smoking bans. But I do not support workplace smoker bans. And there is a huge difference.
The ultimate irony is that ASH calls the fact that nonsmokers may bear increased health care costs because of smokers "discrimination," yet fails to appreciate that the policy it is proposing is actually a form of institutionalized employment discrimination.
Frankly, it is not discrimination (and it is an insult to the term discrimination) to use that term to describe the increased burden of health care costs that fall on nonsmokers. One could just as easily argue that thin people are discriminated against because they bear the costs of treating illnesses among fat people, or that vegetarians are discriminated against because they subsidize the costs of treating people who eat high-fat diets, or that non-bungee-jumpers are discriminated against because they have to subsidize the health care costs of treating bungee jumping injuries.
But it is truly employment discrimination to refuse to consider applications from smokers simply because of the category to which they belong, rather than based on any individual qualifications for employment (which cannot possibly be considered if their applications are immediately thrown in the trash based solely on the fact that they admit smoking off-the-job).
In my workplace, it is indisputably true that the major source of increased health care costs are employees, like myself, who have young children. We are sicker more, especially during the winter, and my co-workers without young children are bearing the burden of our increased illness.
By ASH's reasoning, my co-workers without young children are being discriminated against, and I should be fired. And I guess I should have been fired 4 years ago, when my first child was born. Or maybe they should have asked if I planned to have children when I first applied, and thrown my application in the garbage right then and there. Then all these problems and the "discrimination" it has caused could have been avoided.
It's getting really hard for me to understand what ASH is trying to do. They want smokers to be banned from employment. They want smokers not to be allowed to smoke anywhere but in the privacy of their own homes, and then only if they are not foster parents.
The only thing that makes sense to me in explaining what ASH is doing is that there is a huge amount of underlying hate of smokers, and that ASH apparently feels that smokers need to be punished for their "poor choices."
I challenge ASH to explain why they are not taking the lead in supporting legislation to deprive smokers of medical treatment. Such a move would save an incredible amount of money, would end the terrible discrimination that nonsmokers have to face by subsidizing health care costs for smokers, and would be a huge incentive for smokers to quit smoking and for nonsmokers not to start. It would be an incredibly effective public health intervention that would save lives and money. I don't see how ASH, by its very own reasoning, could possibly justify not supporting such a policy.
The logical endpoint of what ASH (and in the absence of any opposition - the anti-smoking movement) is actively promoting is the creation of second-class status for smokers. They are to become a group that is not capable of obtaining gainful employment and making a living to support themselves and their families.
And you know what? In the long-run, this would only serve to increase socioeconomic disparities in health and to increase smoking. But even if it didn't, it's just plain wrong.
The rest of the story is that a prominent anti-smoking group is actively promoting discrimination against smokers in the workplace, urging cities and employers across the nation to fire existing smoking employees and not to hire any smokers in the future. And the rest of the U.S. anti-smoking groups are sitting around quietly watching this happen.
Even if a single other anti-smoking group in the U.S. condemned these policies, I think it would pretty much bring an end to this nonsense. But most importantly, it would put employers and policy makers on notice that while creating smoke-free workplaces is an important public health goal, creating smoker-free workplaces is unjustified, intrusive, discriminatory, and improper.
Tobacco Control Researcher Proposes Tobacco Industry Funding of "Independent" Tobacco Control Research
For the first time that I am aware, it has been proposed from within the tobacco control community that tobacco control researchers seek funding from the tobacco companies for their research.
Specifically, a researcher writing in the current issue of Tobacco Control promotes seeking tobacco industry funding to research the health effects of potential reduced exposure products (PREPs) (see: Eisenberg T. The time for tobacco industry sponsored PREP evaluation has arrived. Tobacco Control 2006; 15:1-2).
"Tobacco industry support for objective work completed by independent researchers may seem challenging, but the expertise exists and the need is real. ... The time for industry sponsored evaluation of the exposure reduction associated with specific PREPs has arrived. ..."
The article calls for industry funding of independent scientists to evaluate PREPs "in an environment where industry support for PREP evaluation is accepted only under specific, clearly articulated conditions; by qualified, objective researchers using state of the art techniques; with oversight that maintains the integrity of the research enterprise, from study design to data analysis, to timely publication."
The reason provided for the need for industry funding of independent research is that "failure to act in this manner will, at best, leave evaluation in the hands of an industry with a poor track record for objectivity. At worst, failure to act will doom us to repeat the very history that we remember too well: a history where uninformed consumers and many public health advocates embraced untested products that enriched the tobacco industry but did not reduce smokers' exposure to lethal smoke toxicants."
Of note, the article was written by a researcher who is conducting evaluation of PREPs with funding from NIH.
The Rest of the Story
I don't buy this at all.
I don't think it is appropriate for tobacco control researchers to seek funding from the tobacco industry to conduct their research. I think the bias inherent in doing so is so great that it is impossible to generate objective research, no matter how many controls are built in to the system to try to protect the integrity of the research.
By the arguments in this article, much of the research conducted by tobacco industry-funded scientists over the past 50 or so years would have been acceptable. After all, a fair amount of this research was conducted in a manner in which the industry had no control over the process. But that very same research contributed to a systematic process by which the public's appreciation of the health effects of tobacco use was undermined.
By the arguments in this article, we should be actively encouraging universities to seek tobacco industry funding for research, and we should be opposing the decisions of academic units, such as the Harvard School of Public Health, UC Berkeley School of Public Health, UCSF Comprehensive Cancer Center, and many others, to not accept tobacco industry funding of academic research at those institutions.
I think this proposal goes against the grain of what the tobacco control movement has been trying to achieve over the past few decades, and it greatly undermines the progress that has been made. In addition, it greatly undermines the basic premise for much of the Department of Justice's claims of fraudulent tobacco industry conduct in its litigation against cigarette companies.
What this proposal says is that it is acceptable to promote tobacco industry funding of research to improve human health and that there is no inherent conflict in doing so. I disagree.
Don't get me wrong. I am not criticizing any individual scientists who have made the decision to accept tobacco industry funding. That's their decision. But I don't agree with a systematic and institutionalized policy of promoting and seeking tobacco industry funding of research at private and public academic institutions.
I'm sorry, but if research is being funded by the tobacco industry, there is a huge incentive on the part of the researchers to produce findings that are beneficial to the funder. That is not a slam on the integrity of researchers, it's just a simple fact of academic life.
And another simple fact of life is that the tobacco industry has used supposedly "independent" academic research as a public relations and marketing tool for decades, and continues to do so. Why would we want to make public and private universities pawns of the tobacco industry, and agents in the industry's public relations and marketing schemes?
To me, that's not tobacco control nor is it public health, although it does sound like a good way to open up funding streams for researchers who are interested in doing work in this area.
There are really only two ways I can think of that a system of industry-sponsored research could work. First, the industry could voluntarily fund such a system. But if that were to be the case, then the bias would be intolerable, because the very fact that the industry could then voluntarily withdraw the funding would create a huge incentive to produce results favorable to the industry.
Second, the industry could be forced to fund such research. But I don't see any legal basis for requiring that.
In addition, I think it would present ethical problems under either scenario. Should universities really be arms of the tobacco companies, serving to help them conduct research and development for deadly products? After all, that's essentially what this amounts to. Evaluation of PREPs is a part of the research and development process that goes into the eventual marketing of these products. I don't see that as an appropriate role for academic institutions.
The last thing in the world that I think we want to do is to take the requirements for documenting health claims of PREPs off of the shoulders of the tobacco industry and onto independent researchers at academic institutions. It is the tobacco companies' responsibility to document their health claims, not "ours." And I don't see any role for "us" in the process of helping the companies to do that in any kind of partnership or collaboration, which is what this article is essentially calling for.
I'm not arguing that public health research on the effects of PREPs is unwarranted. It's quite important and valuable. But it should be done as completely independent public health research with the aim of producing information of interest, not as a collaborative endeavor with tobacco industry that forms a substantive part of the companies' research and development in the potential marketing of a deadly product.
Do we really want it on our conscience and on our record as academic institutions that we conducted research that formed a substantive part of the research and development of a deadly product, and that we sought to do so in collaboration with the tobacco industry? In some ways, I think we would become, in part, accomplices.
I'm sorry, but partnering with the tobacco industry is not the way to go. In addition to the ethical problems, it would give the industry a tremendous public relations boost and provide the industry with much-desired legitimacy. That would do more damage to public health then any possible research that I can imagine being funded.
The bottom line is that the research and development of tobacco products and the documentation of the health claims being made in tobacco marketing is the responsibility of the tobacco companies. If we are concerned about misleading health claims, then the way to deal with that is two-fold: (1) to enforce laws that make misleading claims illegal (such as pressuring the FTC to enforce the current law which makes misleading advertising claims illegal); and (2) to work to retain cigarette company liability for misleading health claims by making sure that the proposed FDA legislation is killed.
The most important thing protecting the public from potentially misleading health claims associated with PREPs is the threat of litigation. And that is precisely why Philip Morris so badly desires enactment of the proposed FDA legislation, which would completely remove the liability threat regarding misleading health claims of its new PREPs. It is removing that liability that would actually open up the door to the worldwide marketing of these products and to the ability of companies to get away with making misleading health claims of reduced exposure products.
Industry sponsored research on PREPs would only serve to reduce the liability associated with marketing PREPs and increase the chances that companies would make misleading health claims. After all, what better documentation could there be then "independent" confirmation of the reduced exposure from PREPs (exposure reductions that could well turn out not to be related to improved health outcomes)? But the industry could use such data in arguing, successfully I believe, that it should not be held responsible for any damages from misleading health claims. Academic institutions would become accomplices in the marketing of PREPs and in the damage done by any misleading health claims.
I think we are deceiving ourselves if we think anything good is going to come out of seeking tobacco industry funding so that we can become a part of the research, development, and marketing process for tobacco products.
Be warned now. This is a disaster waiting to happen.
Specifically, a researcher writing in the current issue of Tobacco Control promotes seeking tobacco industry funding to research the health effects of potential reduced exposure products (PREPs) (see: Eisenberg T. The time for tobacco industry sponsored PREP evaluation has arrived. Tobacco Control 2006; 15:1-2).
"Tobacco industry support for objective work completed by independent researchers may seem challenging, but the expertise exists and the need is real. ... The time for industry sponsored evaluation of the exposure reduction associated with specific PREPs has arrived. ..."
The article calls for industry funding of independent scientists to evaluate PREPs "in an environment where industry support for PREP evaluation is accepted only under specific, clearly articulated conditions; by qualified, objective researchers using state of the art techniques; with oversight that maintains the integrity of the research enterprise, from study design to data analysis, to timely publication."
The reason provided for the need for industry funding of independent research is that "failure to act in this manner will, at best, leave evaluation in the hands of an industry with a poor track record for objectivity. At worst, failure to act will doom us to repeat the very history that we remember too well: a history where uninformed consumers and many public health advocates embraced untested products that enriched the tobacco industry but did not reduce smokers' exposure to lethal smoke toxicants."
Of note, the article was written by a researcher who is conducting evaluation of PREPs with funding from NIH.
The Rest of the Story
I don't buy this at all.
I don't think it is appropriate for tobacco control researchers to seek funding from the tobacco industry to conduct their research. I think the bias inherent in doing so is so great that it is impossible to generate objective research, no matter how many controls are built in to the system to try to protect the integrity of the research.
By the arguments in this article, much of the research conducted by tobacco industry-funded scientists over the past 50 or so years would have been acceptable. After all, a fair amount of this research was conducted in a manner in which the industry had no control over the process. But that very same research contributed to a systematic process by which the public's appreciation of the health effects of tobacco use was undermined.
By the arguments in this article, we should be actively encouraging universities to seek tobacco industry funding for research, and we should be opposing the decisions of academic units, such as the Harvard School of Public Health, UC Berkeley School of Public Health, UCSF Comprehensive Cancer Center, and many others, to not accept tobacco industry funding of academic research at those institutions.
I think this proposal goes against the grain of what the tobacco control movement has been trying to achieve over the past few decades, and it greatly undermines the progress that has been made. In addition, it greatly undermines the basic premise for much of the Department of Justice's claims of fraudulent tobacco industry conduct in its litigation against cigarette companies.
What this proposal says is that it is acceptable to promote tobacco industry funding of research to improve human health and that there is no inherent conflict in doing so. I disagree.
Don't get me wrong. I am not criticizing any individual scientists who have made the decision to accept tobacco industry funding. That's their decision. But I don't agree with a systematic and institutionalized policy of promoting and seeking tobacco industry funding of research at private and public academic institutions.
I'm sorry, but if research is being funded by the tobacco industry, there is a huge incentive on the part of the researchers to produce findings that are beneficial to the funder. That is not a slam on the integrity of researchers, it's just a simple fact of academic life.
And another simple fact of life is that the tobacco industry has used supposedly "independent" academic research as a public relations and marketing tool for decades, and continues to do so. Why would we want to make public and private universities pawns of the tobacco industry, and agents in the industry's public relations and marketing schemes?
To me, that's not tobacco control nor is it public health, although it does sound like a good way to open up funding streams for researchers who are interested in doing work in this area.
There are really only two ways I can think of that a system of industry-sponsored research could work. First, the industry could voluntarily fund such a system. But if that were to be the case, then the bias would be intolerable, because the very fact that the industry could then voluntarily withdraw the funding would create a huge incentive to produce results favorable to the industry.
Second, the industry could be forced to fund such research. But I don't see any legal basis for requiring that.
In addition, I think it would present ethical problems under either scenario. Should universities really be arms of the tobacco companies, serving to help them conduct research and development for deadly products? After all, that's essentially what this amounts to. Evaluation of PREPs is a part of the research and development process that goes into the eventual marketing of these products. I don't see that as an appropriate role for academic institutions.
The last thing in the world that I think we want to do is to take the requirements for documenting health claims of PREPs off of the shoulders of the tobacco industry and onto independent researchers at academic institutions. It is the tobacco companies' responsibility to document their health claims, not "ours." And I don't see any role for "us" in the process of helping the companies to do that in any kind of partnership or collaboration, which is what this article is essentially calling for.
I'm not arguing that public health research on the effects of PREPs is unwarranted. It's quite important and valuable. But it should be done as completely independent public health research with the aim of producing information of interest, not as a collaborative endeavor with tobacco industry that forms a substantive part of the companies' research and development in the potential marketing of a deadly product.
Do we really want it on our conscience and on our record as academic institutions that we conducted research that formed a substantive part of the research and development of a deadly product, and that we sought to do so in collaboration with the tobacco industry? In some ways, I think we would become, in part, accomplices.
I'm sorry, but partnering with the tobacco industry is not the way to go. In addition to the ethical problems, it would give the industry a tremendous public relations boost and provide the industry with much-desired legitimacy. That would do more damage to public health then any possible research that I can imagine being funded.
The bottom line is that the research and development of tobacco products and the documentation of the health claims being made in tobacco marketing is the responsibility of the tobacco companies. If we are concerned about misleading health claims, then the way to deal with that is two-fold: (1) to enforce laws that make misleading claims illegal (such as pressuring the FTC to enforce the current law which makes misleading advertising claims illegal); and (2) to work to retain cigarette company liability for misleading health claims by making sure that the proposed FDA legislation is killed.
The most important thing protecting the public from potentially misleading health claims associated with PREPs is the threat of litigation. And that is precisely why Philip Morris so badly desires enactment of the proposed FDA legislation, which would completely remove the liability threat regarding misleading health claims of its new PREPs. It is removing that liability that would actually open up the door to the worldwide marketing of these products and to the ability of companies to get away with making misleading health claims of reduced exposure products.
Industry sponsored research on PREPs would only serve to reduce the liability associated with marketing PREPs and increase the chances that companies would make misleading health claims. After all, what better documentation could there be then "independent" confirmation of the reduced exposure from PREPs (exposure reductions that could well turn out not to be related to improved health outcomes)? But the industry could use such data in arguing, successfully I believe, that it should not be held responsible for any damages from misleading health claims. Academic institutions would become accomplices in the marketing of PREPs and in the damage done by any misleading health claims.
I think we are deceiving ourselves if we think anything good is going to come out of seeking tobacco industry funding so that we can become a part of the research, development, and marketing process for tobacco products.
Be warned now. This is a disaster waiting to happen.
Wednesday, February 08, 2006
Another Nonsensical Smoke-Free Law is Enacted
The Alexandria (Louisiana) City Council last night voted unanimously to ban smoking outdoors in the city's parks, but not indoors in offices, restaurants that serve alcohol, or other indoor workplaces.
According to an article in the Town Talk, "it will be against city law to light up: in restaurants that don't serve alcohol; in city vehicles, parks and buildings; while standing in line at a theater; within 50 feet of a health care facility entrance or exit; in banks and other business areas where the public gathers; churches; and sporting arenas. Locations not covered by the law include private homes, cars, bars and restaurants holding a liquor license. The smoking ban also will not reach into private business offices or employee break rooms."
According to the article, the American Cancer Society at first indicated that it would not back an inconsistent law that failed to protect workers from secondhand smoke, but later backed down.
The article indicates that the law will be enforced by penalizing smokers who violate the provisions, rather than requiring businesses to comply with the law by disallowing smoking in their establishments.
The Rest of the Story
I think this is another example of what seems to be a trend of nonsensical smoking policies that is being supported by anti-smoking organizations. Here, secondhand smoke is viewed to be such a health hazard that even small and transient exposure must be prevented by banning smoking outdoors in parks, yet not such a hazard that workers in the majority of workplaces in Lafayette (including offices, where the majority of the public nationwide has been protected for nearly a decade) need to be protected.
It also doesn't make sense to me to ban smoking in parks, where exposure is small, transient, and largely avoidable, but not in all restaurants, where exposure is large, sustained, and non-avoidable for employees who work at these establishments.
Furthermore, this law is largely a waste, because it is well-documented that penalizing smokers for infractions of smoke-free laws is not an effective way of enforcing these laws. Unless business owners are responsible for enforcing the law, it is unlikely that it will be seriously enforced.
Are police officers going to start coming into restaurants and issuing citations to people who are smoking? Are they going to patrol the parks and issue tickets to smokers? Do we even want the police to be pre-occupied with this task when there are far more important things that the police need to be doing?
I think the American Cancer Society was on the right track when it apparently had decided that a consistent public health policy is the only type that is worthy of supporting. Unfortunately, it appears to have changed its tune at the last minute. It ended up, it appears, supporting an irrational and nonsensical policy that has no public health justification.
While it appears that smoke-free advocates in Louisiana are arguing that this is at least a step in the right direction, I would counter that it is actually a step in the wrong direction.
Enacting irrational, inconsistent, hypocritical, nonsensical, unjustified, ineffective, and irresponsible public policy is not, in my view, a step in the right direction. It is simply not something that I think public health practitioners should be supporting.
Moreover, I think it sets a bad precedent for other localities, frames the issue in exactly the wrong way, and detracts from, or greatly distorts the important public health message that needs to be communicated to the public.
Supporting ordinances such as this one also, I think, harms the reputation of the smoke-free movement by casting us as public health practitioners whose goal is simply to limit the places where people can smoke, rather than rationally and consistently confront a serious public health problem.
According to an article in the Town Talk, "it will be against city law to light up: in restaurants that don't serve alcohol; in city vehicles, parks and buildings; while standing in line at a theater; within 50 feet of a health care facility entrance or exit; in banks and other business areas where the public gathers; churches; and sporting arenas. Locations not covered by the law include private homes, cars, bars and restaurants holding a liquor license. The smoking ban also will not reach into private business offices or employee break rooms."
According to the article, the American Cancer Society at first indicated that it would not back an inconsistent law that failed to protect workers from secondhand smoke, but later backed down.
The article indicates that the law will be enforced by penalizing smokers who violate the provisions, rather than requiring businesses to comply with the law by disallowing smoking in their establishments.
The Rest of the Story
I think this is another example of what seems to be a trend of nonsensical smoking policies that is being supported by anti-smoking organizations. Here, secondhand smoke is viewed to be such a health hazard that even small and transient exposure must be prevented by banning smoking outdoors in parks, yet not such a hazard that workers in the majority of workplaces in Lafayette (including offices, where the majority of the public nationwide has been protected for nearly a decade) need to be protected.
It also doesn't make sense to me to ban smoking in parks, where exposure is small, transient, and largely avoidable, but not in all restaurants, where exposure is large, sustained, and non-avoidable for employees who work at these establishments.
Furthermore, this law is largely a waste, because it is well-documented that penalizing smokers for infractions of smoke-free laws is not an effective way of enforcing these laws. Unless business owners are responsible for enforcing the law, it is unlikely that it will be seriously enforced.
Are police officers going to start coming into restaurants and issuing citations to people who are smoking? Are they going to patrol the parks and issue tickets to smokers? Do we even want the police to be pre-occupied with this task when there are far more important things that the police need to be doing?
I think the American Cancer Society was on the right track when it apparently had decided that a consistent public health policy is the only type that is worthy of supporting. Unfortunately, it appears to have changed its tune at the last minute. It ended up, it appears, supporting an irrational and nonsensical policy that has no public health justification.
While it appears that smoke-free advocates in Louisiana are arguing that this is at least a step in the right direction, I would counter that it is actually a step in the wrong direction.
Enacting irrational, inconsistent, hypocritical, nonsensical, unjustified, ineffective, and irresponsible public policy is not, in my view, a step in the right direction. It is simply not something that I think public health practitioners should be supporting.
Moreover, I think it sets a bad precedent for other localities, frames the issue in exactly the wrong way, and detracts from, or greatly distorts the important public health message that needs to be communicated to the public.
Supporting ordinances such as this one also, I think, harms the reputation of the smoke-free movement by casting us as public health practitioners whose goal is simply to limit the places where people can smoke, rather than rationally and consistently confront a serious public health problem.
Tuesday, February 07, 2006
Colorado Legislature Considering Bill to Deny Medical Treatment to Smokers
A bill introduced by state Senator Ron Teck into the
Senate Bill 101, which is expected to be considered in committee tomorrow, would deny publicly funded medical treatment to victims of these cancers who obtained these diseases because of smoking, with a gradual phase-out of funding based on the year individuals started smoking: "“Senate Bill 101 would incrementally phase out medical benefits over a 20-year period. The state would continue to pick up the treatment tab of anyone who started smoking or using tobacco products before 1975. The percentage of treatment costs covered by the state would drop 5 percent every year after 1975. That means a person who didn'’t start smoking or using tobacco products until 1985 would receive half of what the state now pays for the treatment of their smoking-related condition."”
This essentially means that anyone who starts smoking from now on will be denied coverage for treatment of lung cancer in
How would the state know if a person'’s lung cancer was due to smoking? According to Senator Teck, oncologists "can, with 100 percent confidence, ID people who have incurred these diseases from smoking."”
The reason Teck gives for introducing this legislation is that it is unfair for taxpayers to subsidize health care costs for smokers.
The Rest of the Story
While this proposal is so ludicrous and inhumane that it will hopefully not garner any serious consideration, the very fact that Teck was able to introduce this legislation without fear of being made a laughing stock in
And I fear that we (anti-smoking advocates and organizations) have something to do with that.
It is, after all, the active promotion as well as passive support by anti-smoking groups of policies that discriminate against smokers in the name of helping to improve their health and to save money for employers and nonsmoking workers and taxpayers that has paved the way to make the introduction of such an inhumane and sickening proposal possible.
When you start leading people down a road, it can become quite difficult to get them to stop and turn back. And in my view, anti-smoking groups that have been promoting or supporting policies to fire smokers in the workplace, to refuse to hire smokers, and to ban smoking in outdoors public places in order to protect children from seeing smokers are largely responsible for leading policy makers down this road, along which they are now proceeding with reckless abandon.
This is why I, like NFL team owners about to fire their head coaches, say that I don't like the direction the program is going.
It just seems to me that we have left the realm of public health and that we are now on some sort of crusade to punish smokers for their behavior. We don't want them to be able to compete for jobs in the workplace, we don't want them to be able to retain jobs, we don't want anyone to see them in public, and now, some policy makers are taking it a step further and trying to deny them medical care. Where will it stop?
I honestly used to think that when critics of tobacco control asked the question "Where will it stop?" they were full of crap. But I am starting to see that there is a dynamic where leading policy makers down a path can result in momentum that propels them further down that path, even if our original intentions were not to proceed that far.
The question is: do anti-smoking groups want to proceed that far? To be quite honest, I'm not clear on the answer. For Action on Smoking and Health, the answer does seem clear. They have made it apparent to all that they would like to see smokers fired from their jobs and for smoking to be banned everywhere outdoors as well as in cars with children and homes with foster children.
While the answer is not necessarily clear for the rest of the anti-smoking movement, I can only assume, due to these groups' failure to speak out against the direction of the program, that they at least quietly support what is happening.
It will be interesting to see if any anti-smoking groups publicly speak out against Senate Bill 101.
I suspect not. I think it is difficult for anti-smoking groups to say anything that might be construed as suggesting that smokers have rights just like the "rest" of us.
Monday, February 06, 2006
Melbourne (Florida) Considering Not Hiring Smokers
The city of Melbourne (Florida) is considering adding its name to the growing list of employers who refuse to hire smokers. According to a proposal the City Council is now considering: "Applicants would be asked about tobacco use during pre-employment screening -- and smokers would get dropped from further consideration."
The purpose of the policy is to prevent nonsmoking employees from having to offset the health care costs of smoking employees.
According to the City Manager: "I think it's a good path to explore, and it makes a lot of sense. It is very odd that -- 50 years after the surgeon general said, 'smoking's bad, don't do this, smoking's bad, it's not healthy,' -- that we're still having that conversation."
The Rest of the Story
Interestingly, another Florida city - North Miami - instituted a similar policy in 1990. However, after 13 years of experience with the policy, the city dropped it because officials realized they were having trouble recruiting enough qualified applicants and were turning some otherwise outstanding applicants away: "'We were having difficulty recruiting qualified police officers, and we felt this policy may have prevented some good candidates from applying,' said Rebecca Jones, North Miami director of personnel administration."
And that is precisely why Melbourne's proposed policy is wrong. Because it judges potential applicants based not on their individual qualifications for the job, but on the group to which they belong, it represents employment discrimination.
While it may be true that on a statistical basis, smokers cost an employer more than nonsmokers, on an individual basis this is most certainly not true. The healthiest smoker clearly is going to cost less than the least healthy nonsmoker.
For example, a young (let's say 24-year-old) smoker with normal blood pressure, low cholesterol, a weight of 145 pounds, and clean coronary arteries is going to cost an employer less than a 55 year-old nonsmoker who has a resting blood pressure of 160/100, a cholesterol of 285, a weight of 285 pounds, and two-vessel coronary artery disease due to 45 years of eating too many french fries and tater tots (I can't avoid bringing in those tater tots).
If you're going to try to establish a policy of not making employees pay for the increased health care costs of their fellow employees, then it is irrational to consider only one factor in health. And in fact, among young people, smoking is probably far less of an important consideration in health care costs and lost work days then other factors, including whether or not the applicant has young children at home.
In addition, weight (or body mass index) is a huge determinant of health status and health care costs. Obese employees are 4 times more likely to be hospitalized in a given year than non-obese employees. Eliminating smoking applicants from job consideration while retaining obese applicants seems nonsensical.
This is precisely why employment discrimination is so inappropriate. It precludes individuals from being judged on their individual qualifications, forcing them instead to be judged on group membership.
And if one agrees with the Melbourne City Manager that after 50 years of knowing that smoking is bad for health, it's odd that we're still having this conversation about hiring smokers, then would not one also have to agree that after more than 50 years of knowing that obesity is bad for health, it's odd that we're still having a conversation about hiring obese people?
Unfortunately, this disturbing trend is going to continue until anti-smoking groups speak out against the practice. And it doesn't look like that's going to happen any time soon.
The purpose of the policy is to prevent nonsmoking employees from having to offset the health care costs of smoking employees.
According to the City Manager: "I think it's a good path to explore, and it makes a lot of sense. It is very odd that -- 50 years after the surgeon general said, 'smoking's bad, don't do this, smoking's bad, it's not healthy,' -- that we're still having that conversation."
The Rest of the Story
Interestingly, another Florida city - North Miami - instituted a similar policy in 1990. However, after 13 years of experience with the policy, the city dropped it because officials realized they were having trouble recruiting enough qualified applicants and were turning some otherwise outstanding applicants away: "'We were having difficulty recruiting qualified police officers, and we felt this policy may have prevented some good candidates from applying,' said Rebecca Jones, North Miami director of personnel administration."
And that is precisely why Melbourne's proposed policy is wrong. Because it judges potential applicants based not on their individual qualifications for the job, but on the group to which they belong, it represents employment discrimination.
While it may be true that on a statistical basis, smokers cost an employer more than nonsmokers, on an individual basis this is most certainly not true. The healthiest smoker clearly is going to cost less than the least healthy nonsmoker.
For example, a young (let's say 24-year-old) smoker with normal blood pressure, low cholesterol, a weight of 145 pounds, and clean coronary arteries is going to cost an employer less than a 55 year-old nonsmoker who has a resting blood pressure of 160/100, a cholesterol of 285, a weight of 285 pounds, and two-vessel coronary artery disease due to 45 years of eating too many french fries and tater tots (I can't avoid bringing in those tater tots).
If you're going to try to establish a policy of not making employees pay for the increased health care costs of their fellow employees, then it is irrational to consider only one factor in health. And in fact, among young people, smoking is probably far less of an important consideration in health care costs and lost work days then other factors, including whether or not the applicant has young children at home.
In addition, weight (or body mass index) is a huge determinant of health status and health care costs. Obese employees are 4 times more likely to be hospitalized in a given year than non-obese employees. Eliminating smoking applicants from job consideration while retaining obese applicants seems nonsensical.
This is precisely why employment discrimination is so inappropriate. It precludes individuals from being judged on their individual qualifications, forcing them instead to be judged on group membership.
And if one agrees with the Melbourne City Manager that after 50 years of knowing that smoking is bad for health, it's odd that we're still having this conversation about hiring smokers, then would not one also have to agree that after more than 50 years of knowing that obesity is bad for health, it's odd that we're still having a conversation about hiring obese people?
Unfortunately, this disturbing trend is going to continue until anti-smoking groups speak out against the practice. And it doesn't look like that's going to happen any time soon.
Calabasas Poised to Ban Smoking Just About Everywhere
The Calabasas (California) City Council voted to give initial approval to an ordinance that bans smoking in all outdoors areas of the city, including streets and sidewalks. The ordinance, which is being supported by at least one prominent anti-smoking group -- Action on Smoking and Health (ASH) -- would not allow a person to smoke on any street or sidewalk unless there was no other person within 20 feet who was not smoking at the same time or who consented to that individual smoking.
The expressed purpose of the ordinance is to protect nonsmokers from exposure to secondhand smoke and to "assure a cleaner and more hygienic environment for the City, its residents, and its natural resources, including its creeks and streams." In addition, it is intended to reduce "the potential for children to associate smoking and tobacco with a healthy lifestyle," to protect "the public from smoking and tobacco-related litter and pollution," and to promote "the family-friendly atmosphere of the City's public places."
The prohibition of smoking in public places is quite broad and includes "any public or private place open to the general public ... including, for example, streets, sidewalks, plazas, bars, restaurants, clubs, stores, stadiums, parks, playgrounds, taxis and buses." Residential property is not included, nor are 20% of the guest rooms in hotels and motels. But unless specifically exempted, "smoking is prohibited everywhere in the city."
The Rest of the Story
Before discussing the merit of this broad ban on smoking almost everywhere in Calabasas, let's get right to the rest of the story:
The Calabasas City Council is so hypocritical that it is banning smoking on streets and sidewalks in the name of addressing the terrible problem of smoke drifting along outdoors and exposing a nonsmoker transiently, yet it is specifically allowing smoking at a place where hundreds of its residents congregate: The Calabasas Commons shopping mall!!!
This is not a joke! I'm quite serious. The City Council apparently thinks secondhand smoke is so bad that it cannot allow smokers to walk down the street with a cigarette and it is apparently so concerned about kids seeing people setting a bad example by smoking in public that it will not even allow a smoker to light up in a parking lot. However, secondhand smoke is not so bad that people cannot light up at a crowded mall, nor is it such a bad example that the City would want to disallow smoking at its premiere retail establishment.
There's only one way I can think of to explain this hypocrisy. The policy makers in Calabasas are putting on a great show with all their talk about the hazards of secondhand smoke and they're willing to infringe upon smokers in places where exposure to this hazard is low and quite transient. But when it really comes down to it, they don't want to take any risk that the city could lose money if fewer people shop at the Mall. After all, health is really important, but not when it threatens to compete with the city's financial health.
The ordinance, which passed first reading and need only be approved on a second and final reading, allows outdoor smoking areas in common areas of shopping malls, albeit small ones, as long as they are at least 5 feet away from any doorway or opening to an enclosed area and from the parking areas.
Don't get me wrong. I'm not arguing that a smoking area should not be allowed outdoors at a shopping mall. But I certainly think that if the City Council wants to be taken seriously, then it should walk the walk and not just talk the talk.
How could secondhand smoke be so hazardous outdoors that it cannot be allowed anywhere, except for shopping malls? Does the presence of a shopping mall somehow detoxify the smoke? Perhaps it's some special ingredient in Johnny Rockets' cherry milk shakes (which are about the most delicious thing I can think of) that detoxify the secondhand smoke when they waft out of the diner and over to the smoking area.
And what about all those kids going to Johnny Rockets, Gymboree, Barnes & Noble, and M. Fredric kids? Are they somehow immune to the "family unfriendliness" of smokers and to the terrible example set by seeing an adult smoking? And if you were serious about preventing kids from seeing smokers, wouldn't you rather ban smoking at a place where kids congregate due to all these stores that cater to kids (by the way, Gymboree is a kids' store) then in every street and sidewalk, including those where there isn't a kid in sight?
The hypocrisy of this proposed policy is almost too much for me to comprehend.
And to add injury to insult, the Calabasas Commons is described as an "open-air" shopping complex. So it's not like the kids and all the other shoppers are safely tucked away indoors where they won't be exposed to the smoke and won't see the smokers. And presumably, smoking would also be allowed at the Courtyard at the Commons, Creekside Village, Gelson's Village, Calabasas Canyon Center, Calabasas Plaza, Malibu Canyon Plaza, and Plaza Calibasas.
Now to the ridiculousness of the policy itself. If a smoker is walking down the street, she can smoke as long as there is no one within 20 feet. But if someone suddenly enters that 20 foot zone, she must immediately extinguish the cigarette. Unless that person is also smoking. Or unless she quickly asks that person if they consent to her smoking and they say it's OK. But then if another person enters the 20 foot zone, she must extinguish it again.
If a group of 3 smokers are walking down the street but only one is smoking, he must ask the other two for permission to smoke. I suppose that if the companions did not consent, the smoker could simply follow his friends at a distance of 20 feet and be in compliance with the law.
As if this is not bad enough, a smoker who lights up in a parking lot if someone is 19 feet away has committed ... a crime! Not a civil violation, but a criminal offense! A misdemeanor.
And if you run the Cold Stone Creamery and someone lights up a cigarette outside your store and you don't stop them ... congratulations! You've committed a misdemeanor. You have violated section 8.12.060 of the ordinance: "Allowing, Aiding, or Abetting Illegal Smoking."
The ordinance could even be construed as meaning that if you see someone smoking in a parking lot and you don't report it, that you have aided and abetted a criminal action, and therefore, have committed a misdemeanor yourself.
Again, I'm quite serious. Section 8.12.070 of the ordinance states: "No person shall cause, permit, aid, abet, or conceal a violation of any provision of this chapter." So if you conceal the fact that someone has violated the ordinance, you have yourself violated the ordinance. And since "A violation of this ordinance shall constitute a misdemeanor" (see section 8.12.070[a]), you have actually committed a misdemeanor.
I can just see the criminal hearing now: "You mean to tell the Court that you saw someone smoking in a parking lot and you did not report it to the City Prosecutor?"
This ordinance, however, is more than just a joke. It's actually a quite serious abuse of the state's police powers. As Jacob Sullum astutely pointed out, the same reasoning behind not allowing kids to see smokers could lead to policies that bar fat people from public places.
But the saddest part of the story is not the fact that Calabasas is on the verge of taking this action. To me, the saddest part of the story is that anti-smoking groups are supporting this absurd, hypocritical, intrusive, and unjustified policy. One anti-smoking organization - ASH - issued a press release to boast about its support for the policy. And according to that press release, the ordinance is also being supported by 5 other anti-smoking or public health groups: the Los Angeles Department of Health, the American Heart Association, the American Lung Association, SAFE (Smoke Free Air for Everyone), and the Coalition for a Tobacco-Free Los Angeles. If that's true, it's shameful.
The rest of the story is that the anti-smoking movement is on the verge of running amuck. Things are quickly spiraling out of control, and I think there's only one thing that can stop this: and that's if other anti-smoking groups start to speak out against this fanaticism.
The expressed purpose of the ordinance is to protect nonsmokers from exposure to secondhand smoke and to "assure a cleaner and more hygienic environment for the City, its residents, and its natural resources, including its creeks and streams." In addition, it is intended to reduce "the potential for children to associate smoking and tobacco with a healthy lifestyle," to protect "the public from smoking and tobacco-related litter and pollution," and to promote "the family-friendly atmosphere of the City's public places."
The prohibition of smoking in public places is quite broad and includes "any public or private place open to the general public ... including, for example, streets, sidewalks, plazas, bars, restaurants, clubs, stores, stadiums, parks, playgrounds, taxis and buses." Residential property is not included, nor are 20% of the guest rooms in hotels and motels. But unless specifically exempted, "smoking is prohibited everywhere in the city."
The Rest of the Story
Before discussing the merit of this broad ban on smoking almost everywhere in Calabasas, let's get right to the rest of the story:
The Calabasas City Council is so hypocritical that it is banning smoking on streets and sidewalks in the name of addressing the terrible problem of smoke drifting along outdoors and exposing a nonsmoker transiently, yet it is specifically allowing smoking at a place where hundreds of its residents congregate: The Calabasas Commons shopping mall!!!
This is not a joke! I'm quite serious. The City Council apparently thinks secondhand smoke is so bad that it cannot allow smokers to walk down the street with a cigarette and it is apparently so concerned about kids seeing people setting a bad example by smoking in public that it will not even allow a smoker to light up in a parking lot. However, secondhand smoke is not so bad that people cannot light up at a crowded mall, nor is it such a bad example that the City would want to disallow smoking at its premiere retail establishment.
There's only one way I can think of to explain this hypocrisy. The policy makers in Calabasas are putting on a great show with all their talk about the hazards of secondhand smoke and they're willing to infringe upon smokers in places where exposure to this hazard is low and quite transient. But when it really comes down to it, they don't want to take any risk that the city could lose money if fewer people shop at the Mall. After all, health is really important, but not when it threatens to compete with the city's financial health.
The ordinance, which passed first reading and need only be approved on a second and final reading, allows outdoor smoking areas in common areas of shopping malls, albeit small ones, as long as they are at least 5 feet away from any doorway or opening to an enclosed area and from the parking areas.
Don't get me wrong. I'm not arguing that a smoking area should not be allowed outdoors at a shopping mall. But I certainly think that if the City Council wants to be taken seriously, then it should walk the walk and not just talk the talk.
How could secondhand smoke be so hazardous outdoors that it cannot be allowed anywhere, except for shopping malls? Does the presence of a shopping mall somehow detoxify the smoke? Perhaps it's some special ingredient in Johnny Rockets' cherry milk shakes (which are about the most delicious thing I can think of) that detoxify the secondhand smoke when they waft out of the diner and over to the smoking area.
And what about all those kids going to Johnny Rockets, Gymboree, Barnes & Noble, and M. Fredric kids? Are they somehow immune to the "family unfriendliness" of smokers and to the terrible example set by seeing an adult smoking? And if you were serious about preventing kids from seeing smokers, wouldn't you rather ban smoking at a place where kids congregate due to all these stores that cater to kids (by the way, Gymboree is a kids' store) then in every street and sidewalk, including those where there isn't a kid in sight?
The hypocrisy of this proposed policy is almost too much for me to comprehend.
And to add injury to insult, the Calabasas Commons is described as an "open-air" shopping complex. So it's not like the kids and all the other shoppers are safely tucked away indoors where they won't be exposed to the smoke and won't see the smokers. And presumably, smoking would also be allowed at the Courtyard at the Commons, Creekside Village, Gelson's Village, Calabasas Canyon Center, Calabasas Plaza, Malibu Canyon Plaza, and Plaza Calibasas.
Now to the ridiculousness of the policy itself. If a smoker is walking down the street, she can smoke as long as there is no one within 20 feet. But if someone suddenly enters that 20 foot zone, she must immediately extinguish the cigarette. Unless that person is also smoking. Or unless she quickly asks that person if they consent to her smoking and they say it's OK. But then if another person enters the 20 foot zone, she must extinguish it again.
If a group of 3 smokers are walking down the street but only one is smoking, he must ask the other two for permission to smoke. I suppose that if the companions did not consent, the smoker could simply follow his friends at a distance of 20 feet and be in compliance with the law.
As if this is not bad enough, a smoker who lights up in a parking lot if someone is 19 feet away has committed ... a crime! Not a civil violation, but a criminal offense! A misdemeanor.
And if you run the Cold Stone Creamery and someone lights up a cigarette outside your store and you don't stop them ... congratulations! You've committed a misdemeanor. You have violated section 8.12.060 of the ordinance: "Allowing, Aiding, or Abetting Illegal Smoking."
The ordinance could even be construed as meaning that if you see someone smoking in a parking lot and you don't report it, that you have aided and abetted a criminal action, and therefore, have committed a misdemeanor yourself.
Again, I'm quite serious. Section 8.12.070 of the ordinance states: "No person shall cause, permit, aid, abet, or conceal a violation of any provision of this chapter." So if you conceal the fact that someone has violated the ordinance, you have yourself violated the ordinance. And since "A violation of this ordinance shall constitute a misdemeanor" (see section 8.12.070[a]), you have actually committed a misdemeanor.
I can just see the criminal hearing now: "You mean to tell the Court that you saw someone smoking in a parking lot and you did not report it to the City Prosecutor?"
This ordinance, however, is more than just a joke. It's actually a quite serious abuse of the state's police powers. As Jacob Sullum astutely pointed out, the same reasoning behind not allowing kids to see smokers could lead to policies that bar fat people from public places.
But the saddest part of the story is not the fact that Calabasas is on the verge of taking this action. To me, the saddest part of the story is that anti-smoking groups are supporting this absurd, hypocritical, intrusive, and unjustified policy. One anti-smoking organization - ASH - issued a press release to boast about its support for the policy. And according to that press release, the ordinance is also being supported by 5 other anti-smoking or public health groups: the Los Angeles Department of Health, the American Heart Association, the American Lung Association, SAFE (Smoke Free Air for Everyone), and the Coalition for a Tobacco-Free Los Angeles. If that's true, it's shameful.
The rest of the story is that the anti-smoking movement is on the verge of running amuck. Things are quickly spiraling out of control, and I think there's only one thing that can stop this: and that's if other anti-smoking groups start to speak out against this fanaticism.
Saturday, February 04, 2006
IN MY VIEW: Why FTC Consent Orders Do Represent Industrywide Policy
The dissenting opinion in the Price "light" cigarettes case in Illinois held that Philip Morris' marketing of "light" cigarettes was not specifically authorized by the Federal Trade Commission (FTC) and was therefore not subject to an exemption in the state's Consumer Fraud Act. This is in contrast to the majority opinion, which held that through a number of consent orders, the FTC did specifically authorize all tobacco companies to use descriptive terms such as "lights" or "lowered tar and nicotine" in marketing cigarettes.
In this post, I consider two issues. First, is the discrepancy in these two opinions a matter of a correct or errant interpretation of FTC action, or is it a matter of differing interpretation of the meaning of the state's Consumer Fraud Act? This question is important, because it has a direct implication for whether the United States Supreme Court has an interest in reviewing the decision.
Second, I consider the opinion itself and comment on the meaning and implication of FTC consent orders.
The Rest of the Story
In my view, the discrepancy in the opinions is primarily a matter of differing interpretation of the state's Consumer Fraud Act, rather than a matter of a correct versus an errant interpretation of FTC action. I feel that the dissenting opinion, written by Justice Freeman, relies heavily upon a differing construction of the relevant exemption clause in the state statute, and that this differing construction of state law is what ultimately yields a dissenting opinion, rather than simply an alternative view of the meaning of the FTC consent orders and other relevant FTC actions.
Justice Freeman himself, in summarizing his dissent, acknowledges that his dissent is predicated upon a differing interpretation of the state's Consumer Fraud Act and that it was the court's improper construction of that Act which led to his dissent: "The court's action today is predicated upon an erroneous and irresponsible interpretation of our Consumer Fraud Act, an act which I note is to be interpreted so as to give full protection of the citizens of this state against the fraudulent conduct of others. ... The court's construction of section 10b(1) serves not only to dilute needlessly the force of our state consumer protection legislation, but to limit unnecessarily our state's citizens' consumer protection in this area to a federal agency."
In fact, after presenting his somewhat different interpretation of what the FTC consent orders might mean, Justice Freeman then provides a detailed discussion of the rules of "statutory construction" that led him to arrive at a different conclusion than that in the majority opinion. In particular, Freeman relies heavily upon two rules of statutory construction: (1) that "the statute should be evaluated as a whole, with each provision construed in connection with every other section;" and (2) that "in determining the intent of the legislature, the court may properly consider not only the language of the statute, but also the reason and necessity for the law, the evils sought to be remedied, and the purpose to be achieved."
There are not really any factual errors that Justice Freeman suggests in the majority justices' interpretation of FTC action. What it ultimately comes down to, it appears, is a huge difference in the interpretation of the state's Consumer Fraud Act, rather than a gross difference in interpretation of federal action on the issue of cigarette descriptors.
For this reason, I believe that even if I strongly felt that the dissenting opinion was correct, there would probably not be any basis for Supreme Court review of this decision, since it primarily involves a question of the proper interpretation of a state statute.
Now to the question of whether FTC consent orders can be viewed as providing authorization for cigarette company behavior by virtue of their setting rules for industrywide policy.
First, it must be noted that Justice Freeman himself acknowledges the expert testimony that:
Justice Freeman also acknowledges the expert testimony that:
"The dispute between the FTC and American Brands was resolved in 1971, with the entry of a consent order that required American Brands to cease and desist from: Stating in advertising that any cigarette manufactured by it, or the smoke therefrom is low or lower in ‘tar’ by use of the words ‘low, ‘lower,’ or ‘reduced’ or like qualifying terms, unless the statement is accompanied by a clear and conspicuous disclosure of: 1. The ‘tar’ and nicotine content in milligrams of the smoke produced by the advertised cigarette; and 2. If the ‘tar’ content of the advertised brand is compared to that of another brand or brands of cigarette, (a) the ‘tar’ and nicotine content in milligrams of the smoke produced by that brand or those brands of cigarette, and (b) the ‘tar’ and nicotine content in milligrams of the lowest yield domestic cigarette.” American Brands, 79 F.T.C. at 225."
With this level of specificity of the details of requirements for using descriptors that relate to tar and nicotine content, I just have trouble accepting the argument that this action by FTC did not establish guidance and policy for the industry as a whole.
As I mentioned in a previous post, imagine that the FTC allowed American Brands to advertise cigarettes as low-tar according to the provisions outlined above, but later, did not allow Philip Morris to advertise cigarettes as low-tar at all. Even though the original consent order with American Brands could not be argued to hold the full force of law with regard to Philip Morris, it would be difficult to maintain that the FTC's actions were consistent with the law. This would seem to represent a clear example of unequal and inconsistent application of the law.
Thus, I do not find it unreasonable for Philip Morris to assume that the consent order with American Brands provided conditions for the use of the "low-tar" terminology that could be expected to apply to it as well as American Brands.
While it is true that as a matter of the force of law, the consent order did not bind FTC from dealing differently with other companies, as a practical matter, I think that it did bind FTC. Because a federal agency cannot willy nilly apply the law differently to different companies. The reason why the consent order only had the formal force of law with American Brands was simply that American Brands was the company about which a complaint had been filed, and which was therefore party to the consent order. It was not that somehow American Brands' actions were to be regulated differently than those of other companies because of some peculiarity about American Brands that did not apply to Philip Morris and other companies.
For this reason, I think Justice Freeman's argument that the consent order is not a trade regulation rule and that Philip Morris was not a party to the agreement does not hold weight in terms of establishing that Philip Morris was not authorized to take guidance from FTC's consent order on the requirements that Philip Morris had to follow to use tar and nicotine level descriptors in its marketing.
Justice Freeman also provided another concrete example of exactly why it is that consent agreements entered into by FTC do represent industrywide policy. He pointed out that:
"In 1970, the FTC proposed a formal trade regulation rule that would have required cigarette companies to disclose in their advertising FTC-measured tar and nicotine content of their cigarettes. ... However, the FTC dropped this proposed order after eight cigarette companies entered into a voluntary trade agreement."
It seems clear that FTC's interest was in promulgating a formal, industrywide policy on the disclosure of tar and nicotine yields. If that is the case, then does that mean that the FTC changed its mind, and decided that it no longer had an interest in an industrywide policy on tar and nicotine disclosure? Did those 8 cigarette companies convince FTC that the issue wasn't worthy of an industrywide policy?
I don't think so. I think FTC dropped the order because its mechanism of operation is that it prefers to enforce the law through trade agreements if it can do so without having to go through the formal trade regulation process. And in this case, since 8 companies agreed to comply, FTC apparently felt it was not necessary to go through a formal trade regulation process to achieve an industrywide policy on the disclosure issue.
Now is it the case that FTC could not now enforce the disclosure rules among the non-signatory companies because it did not represent an industrywide policy? I doubt it. I think if the FTC decided to, it could easily enforce the disclosure requirement and non-signatories would have no argument at all in claiming that they didn't sign the agreement so they don't need to disclose. The FTC could and would (if it had the interest in enforcing it) simply tell the companies: "Sorry - these are the rules that the industry has to follow").
The second major argument Freeman makes is that the consent order did not specifically mention the word "lights." But my reading of the consent order is that it is very broad with respect to the types of descriptors that it was regulating. After all, it addresses: "Stating in advertising that any cigarette manufactured by it, or the smoke therefrom is low or lower in ‘tar’ by use of the words ‘low, ‘lower,’ or ‘reduced’ or like qualifying terms."
Those "or like qualifying terms" would certainly seem to include the term "lights," which quite obviously is intended to relate to the tar/nicotine content of cigarettes.
Thus, I have trouble accepting the argument that FTC consent orders do not provide overall industry guidance and policy because it is, in fact, through consent orders that FTC enforces the law. FTC does not have to issue a trade regulation rule in order to set industry policy. In fact, enforcement agreements and orders are one of the primary mechanisms by which it enforces the law. And it seems illogical to argue that just because a company is not party to a particular consent order, that the company does not take general or even specific guidance from that order, particularly if the order is as specific as the 1971 consent order is in setting out the precise requirements for the use of tar/nicotine level descriptors.
For the same reason, I have trouble accepting the argument that the fact that the FTC did not ever issue a trade regulation on the issue of descriptors indicates that it never authorized cigarette companies to use these descriptor terms in their marketing. I think the consent order clearly implies a set of requirements that can reasonably be interpreted by the other cigarette companies as indicating FTC enforcement policy on this issue.
I think it's important to recognize that federal agency actions with regard to particular companies do, in fact, serve to set policy and rules for all companies. The converse seems illogical. Could a company being investigated by FTC for using the term "Lowest Tar" brand successfully convince FTC that there was nothing wrong with this action because FTC's consent order applied only to American Brands? I doubt anyone would argue that the use of the term "Lowest Tar" cigarette brand (without appropriate documentation) is lawful under the Federal Cigarette Labeling and Advertising Act, even though there is no trade regulation concerning this issue, even though the 1971 consent order applied only to American Brands, and even though the consent order did not specifically mention the term "lowest tar." I think it's safe to argue that federal law (as interpreted and enforced by the FTC) simply does not allow for the undocumented use of the term "Lowest Tar" brand, even in the absence of a trade regulation on the issue.
Finally, I have trouble accepting the argument that the failure of FTC to specifically mention the term "lights" means that the use of this term was not regulated. In fact, FTC specified that it was regulating the use of any term related to lower tar and nicotine content in cigarettes, and that it was specifically allowing the use of these terms as long as certain conditions were met; namely, that there be documentation of the fact that there were actually lower levels of tar and nicotine produced by the cigarette, presumably using the FTC method for determination of tar and nicotine.
Ultimately, the FTC is simply an enforcement arm for the Federal Cigarette Advertising and Labeling Act, and the central question is not really whether or not FTC has authorized the use of the term "lights" but whether the Federal Cigarette Advertising and Labeling Act authorizes the use of the term "lights."
Remember, the exemption in the Illinois statute is not for conduct "specifically authorized by a regulatory body," but for conduct "specifically authorized by laws administered by any regulatory body."
I think one of the rules of statutory construction is that you have to interpret the actual words used and the fact that alternative words or phrases were not used. Here, the statute does not exempt conduct specifically authorized by a regulatory body, but rather, conduct specifically authorized by the law, as administered by a regulatory body, and I think that distinction is important.
Because the question becomes not whether FTC has ever specifically authorized Philip Morris' marketing of "light" cigarettes (which I actually believe it has), but whether or not the FCLAA (as administered and enforced by FTC) currently authorizes the use of the term "lights."
If someone were to ask me whether the Federal Cigarette Advertising and Labeling Act, as administered by the FTC, allows a company to promote a new brand, with 20 mg tar under the FTC method, called "Lowest Tar on the Market Marlboro," I would argue that it does not. And one element of my argument would be precisely the fact that FTC issued a consent order in 1971 stating that American Brands could not throw out terms like low-tar without documentation.
In other words, I would use the FTC consent order as one piece of information in determining what is or is not permitted under FCLAA.
I find it difficult to accept the argument that the Federal Cigarette Labeling and Advertising Act, as administered by FTC, does not authorize the documented use of the term "lights." In fact, I think it not only authorizes it, but through its interpretation and administration by FTC, it spells out the specific conditions under which a company may use terms like "lights" or any other descriptor of the nicotine and tar levels within cigarettes.
Finally, I do think it's important to recognize that an action can be authorized in one of two ways. One way, which seems to be the only way acknowledged by the dissenting opinion, is for a federal agency to specifically state that the conduct in question, by the company in question, is permissible. The second way is for the regulatory agency not to state that the action in question, by the company in question, is not permissible.
For example, I'm not aware of any specific trade regulation by FTC that allows the use of a cowboy in cigarette advertising. But I have no doubt that Marlboro advertising, at least in terms of its use of a cowboy, is lawful under FCLAA. This is why I think the distinction in the exemption clause between conduct authorized by law versus conducted authorized by a regulatory body is important.
I would like to close by noting what I feel should be the broader lesson from this case. When federal agencies are given jurisdiction to enforce laws, it has a tremendous negative impact on the ability of local government to regulate the same conduct and on the ability of citizens to use state law to hold companies accountable for improper conduct that is federally regulated. I think one of the greatest mistakes we in tobacco control have made historically is under-appreciating the impact of federal preemption of local control, including its impact on litigation.
The proposed FDA tobacco legislation is the next arena where this is going to play itself out. And I'm afraid that in their zeal to claim victory over Big Tobacco, organizations like the Campaign for Tobacco-Free Kids are going to end up providing broad immunity to cigarette companies and greatly undermine the ability (as well as interest) of state and local governments to address the problem of tobacco use.
In this post, I consider two issues. First, is the discrepancy in these two opinions a matter of a correct or errant interpretation of FTC action, or is it a matter of differing interpretation of the meaning of the state's Consumer Fraud Act? This question is important, because it has a direct implication for whether the United States Supreme Court has an interest in reviewing the decision.
Second, I consider the opinion itself and comment on the meaning and implication of FTC consent orders.
The Rest of the Story
In my view, the discrepancy in the opinions is primarily a matter of differing interpretation of the state's Consumer Fraud Act, rather than a matter of a correct versus an errant interpretation of FTC action. I feel that the dissenting opinion, written by Justice Freeman, relies heavily upon a differing construction of the relevant exemption clause in the state statute, and that this differing construction of state law is what ultimately yields a dissenting opinion, rather than simply an alternative view of the meaning of the FTC consent orders and other relevant FTC actions.
Justice Freeman himself, in summarizing his dissent, acknowledges that his dissent is predicated upon a differing interpretation of the state's Consumer Fraud Act and that it was the court's improper construction of that Act which led to his dissent: "The court's action today is predicated upon an erroneous and irresponsible interpretation of our Consumer Fraud Act, an act which I note is to be interpreted so as to give full protection of the citizens of this state against the fraudulent conduct of others. ... The court's construction of section 10b(1) serves not only to dilute needlessly the force of our state consumer protection legislation, but to limit unnecessarily our state's citizens' consumer protection in this area to a federal agency."
In fact, after presenting his somewhat different interpretation of what the FTC consent orders might mean, Justice Freeman then provides a detailed discussion of the rules of "statutory construction" that led him to arrive at a different conclusion than that in the majority opinion. In particular, Freeman relies heavily upon two rules of statutory construction: (1) that "the statute should be evaluated as a whole, with each provision construed in connection with every other section;" and (2) that "in determining the intent of the legislature, the court may properly consider not only the language of the statute, but also the reason and necessity for the law, the evils sought to be remedied, and the purpose to be achieved."
There are not really any factual errors that Justice Freeman suggests in the majority justices' interpretation of FTC action. What it ultimately comes down to, it appears, is a huge difference in the interpretation of the state's Consumer Fraud Act, rather than a gross difference in interpretation of federal action on the issue of cigarette descriptors.
For this reason, I believe that even if I strongly felt that the dissenting opinion was correct, there would probably not be any basis for Supreme Court review of this decision, since it primarily involves a question of the proper interpretation of a state statute.
Now to the question of whether FTC consent orders can be viewed as providing authorization for cigarette company behavior by virtue of their setting rules for industrywide policy.
First, it must be noted that Justice Freeman himself acknowledges the expert testimony that:
- "the primary mission of the FTC is to enforce a variety of federal antitrust and consumer protection laws";
- the FTC is "primarily a law enforcement agency;"
- "the two primary tools the FTC employs to enforce consumer protection laws are trade regulation rules and enforcement procedures."
Justice Freeman also acknowledges the expert testimony that:
- "the 1971 consent order against American Brands, Inc., was 'an official act of the FTC';"
- "the order provided 'industry guidance to [PMUSA] and others regarding the use of descriptors';"
- "this guidance was found in the terms of the order against American Brands;"
- "nonparties to a consent order, even an entire industry, learn from the order how far it can and cannot go;" and
- "the 1971 consent order was exemplary of the FTC intending to provide industrywide guidance with respect to issues addressed in consent orders."
"The dispute between the FTC and American Brands was resolved in 1971, with the entry of a consent order that required American Brands to cease and desist from: Stating in advertising that any cigarette manufactured by it, or the smoke therefrom is low or lower in ‘tar’ by use of the words ‘low, ‘lower,’ or ‘reduced’ or like qualifying terms, unless the statement is accompanied by a clear and conspicuous disclosure of: 1. The ‘tar’ and nicotine content in milligrams of the smoke produced by the advertised cigarette; and 2. If the ‘tar’ content of the advertised brand is compared to that of another brand or brands of cigarette, (a) the ‘tar’ and nicotine content in milligrams of the smoke produced by that brand or those brands of cigarette, and (b) the ‘tar’ and nicotine content in milligrams of the lowest yield domestic cigarette.” American Brands, 79 F.T.C. at 225."
With this level of specificity of the details of requirements for using descriptors that relate to tar and nicotine content, I just have trouble accepting the argument that this action by FTC did not establish guidance and policy for the industry as a whole.
As I mentioned in a previous post, imagine that the FTC allowed American Brands to advertise cigarettes as low-tar according to the provisions outlined above, but later, did not allow Philip Morris to advertise cigarettes as low-tar at all. Even though the original consent order with American Brands could not be argued to hold the full force of law with regard to Philip Morris, it would be difficult to maintain that the FTC's actions were consistent with the law. This would seem to represent a clear example of unequal and inconsistent application of the law.
Thus, I do not find it unreasonable for Philip Morris to assume that the consent order with American Brands provided conditions for the use of the "low-tar" terminology that could be expected to apply to it as well as American Brands.
While it is true that as a matter of the force of law, the consent order did not bind FTC from dealing differently with other companies, as a practical matter, I think that it did bind FTC. Because a federal agency cannot willy nilly apply the law differently to different companies. The reason why the consent order only had the formal force of law with American Brands was simply that American Brands was the company about which a complaint had been filed, and which was therefore party to the consent order. It was not that somehow American Brands' actions were to be regulated differently than those of other companies because of some peculiarity about American Brands that did not apply to Philip Morris and other companies.
For this reason, I think Justice Freeman's argument that the consent order is not a trade regulation rule and that Philip Morris was not a party to the agreement does not hold weight in terms of establishing that Philip Morris was not authorized to take guidance from FTC's consent order on the requirements that Philip Morris had to follow to use tar and nicotine level descriptors in its marketing.
Justice Freeman also provided another concrete example of exactly why it is that consent agreements entered into by FTC do represent industrywide policy. He pointed out that:
"In 1970, the FTC proposed a formal trade regulation rule that would have required cigarette companies to disclose in their advertising FTC-measured tar and nicotine content of their cigarettes. ... However, the FTC dropped this proposed order after eight cigarette companies entered into a voluntary trade agreement."
It seems clear that FTC's interest was in promulgating a formal, industrywide policy on the disclosure of tar and nicotine yields. If that is the case, then does that mean that the FTC changed its mind, and decided that it no longer had an interest in an industrywide policy on tar and nicotine disclosure? Did those 8 cigarette companies convince FTC that the issue wasn't worthy of an industrywide policy?
I don't think so. I think FTC dropped the order because its mechanism of operation is that it prefers to enforce the law through trade agreements if it can do so without having to go through the formal trade regulation process. And in this case, since 8 companies agreed to comply, FTC apparently felt it was not necessary to go through a formal trade regulation process to achieve an industrywide policy on the disclosure issue.
Now is it the case that FTC could not now enforce the disclosure rules among the non-signatory companies because it did not represent an industrywide policy? I doubt it. I think if the FTC decided to, it could easily enforce the disclosure requirement and non-signatories would have no argument at all in claiming that they didn't sign the agreement so they don't need to disclose. The FTC could and would (if it had the interest in enforcing it) simply tell the companies: "Sorry - these are the rules that the industry has to follow").
The second major argument Freeman makes is that the consent order did not specifically mention the word "lights." But my reading of the consent order is that it is very broad with respect to the types of descriptors that it was regulating. After all, it addresses: "Stating in advertising that any cigarette manufactured by it, or the smoke therefrom is low or lower in ‘tar’ by use of the words ‘low, ‘lower,’ or ‘reduced’ or like qualifying terms."
Those "or like qualifying terms" would certainly seem to include the term "lights," which quite obviously is intended to relate to the tar/nicotine content of cigarettes.
Thus, I have trouble accepting the argument that FTC consent orders do not provide overall industry guidance and policy because it is, in fact, through consent orders that FTC enforces the law. FTC does not have to issue a trade regulation rule in order to set industry policy. In fact, enforcement agreements and orders are one of the primary mechanisms by which it enforces the law. And it seems illogical to argue that just because a company is not party to a particular consent order, that the company does not take general or even specific guidance from that order, particularly if the order is as specific as the 1971 consent order is in setting out the precise requirements for the use of tar/nicotine level descriptors.
For the same reason, I have trouble accepting the argument that the fact that the FTC did not ever issue a trade regulation on the issue of descriptors indicates that it never authorized cigarette companies to use these descriptor terms in their marketing. I think the consent order clearly implies a set of requirements that can reasonably be interpreted by the other cigarette companies as indicating FTC enforcement policy on this issue.
I think it's important to recognize that federal agency actions with regard to particular companies do, in fact, serve to set policy and rules for all companies. The converse seems illogical. Could a company being investigated by FTC for using the term "Lowest Tar" brand successfully convince FTC that there was nothing wrong with this action because FTC's consent order applied only to American Brands? I doubt anyone would argue that the use of the term "Lowest Tar" cigarette brand (without appropriate documentation) is lawful under the Federal Cigarette Labeling and Advertising Act, even though there is no trade regulation concerning this issue, even though the 1971 consent order applied only to American Brands, and even though the consent order did not specifically mention the term "lowest tar." I think it's safe to argue that federal law (as interpreted and enforced by the FTC) simply does not allow for the undocumented use of the term "Lowest Tar" brand, even in the absence of a trade regulation on the issue.
Finally, I have trouble accepting the argument that the failure of FTC to specifically mention the term "lights" means that the use of this term was not regulated. In fact, FTC specified that it was regulating the use of any term related to lower tar and nicotine content in cigarettes, and that it was specifically allowing the use of these terms as long as certain conditions were met; namely, that there be documentation of the fact that there were actually lower levels of tar and nicotine produced by the cigarette, presumably using the FTC method for determination of tar and nicotine.
Ultimately, the FTC is simply an enforcement arm for the Federal Cigarette Advertising and Labeling Act, and the central question is not really whether or not FTC has authorized the use of the term "lights" but whether the Federal Cigarette Advertising and Labeling Act authorizes the use of the term "lights."
Remember, the exemption in the Illinois statute is not for conduct "specifically authorized by a regulatory body," but for conduct "specifically authorized by laws administered by any regulatory body."
I think one of the rules of statutory construction is that you have to interpret the actual words used and the fact that alternative words or phrases were not used. Here, the statute does not exempt conduct specifically authorized by a regulatory body, but rather, conduct specifically authorized by the law, as administered by a regulatory body, and I think that distinction is important.
Because the question becomes not whether FTC has ever specifically authorized Philip Morris' marketing of "light" cigarettes (which I actually believe it has), but whether or not the FCLAA (as administered and enforced by FTC) currently authorizes the use of the term "lights."
If someone were to ask me whether the Federal Cigarette Advertising and Labeling Act, as administered by the FTC, allows a company to promote a new brand, with 20 mg tar under the FTC method, called "Lowest Tar on the Market Marlboro," I would argue that it does not. And one element of my argument would be precisely the fact that FTC issued a consent order in 1971 stating that American Brands could not throw out terms like low-tar without documentation.
In other words, I would use the FTC consent order as one piece of information in determining what is or is not permitted under FCLAA.
I find it difficult to accept the argument that the Federal Cigarette Labeling and Advertising Act, as administered by FTC, does not authorize the documented use of the term "lights." In fact, I think it not only authorizes it, but through its interpretation and administration by FTC, it spells out the specific conditions under which a company may use terms like "lights" or any other descriptor of the nicotine and tar levels within cigarettes.
Finally, I do think it's important to recognize that an action can be authorized in one of two ways. One way, which seems to be the only way acknowledged by the dissenting opinion, is for a federal agency to specifically state that the conduct in question, by the company in question, is permissible. The second way is for the regulatory agency not to state that the action in question, by the company in question, is not permissible.
For example, I'm not aware of any specific trade regulation by FTC that allows the use of a cowboy in cigarette advertising. But I have no doubt that Marlboro advertising, at least in terms of its use of a cowboy, is lawful under FCLAA. This is why I think the distinction in the exemption clause between conduct authorized by law versus conducted authorized by a regulatory body is important.
I would like to close by noting what I feel should be the broader lesson from this case. When federal agencies are given jurisdiction to enforce laws, it has a tremendous negative impact on the ability of local government to regulate the same conduct and on the ability of citizens to use state law to hold companies accountable for improper conduct that is federally regulated. I think one of the greatest mistakes we in tobacco control have made historically is under-appreciating the impact of federal preemption of local control, including its impact on litigation.
The proposed FDA tobacco legislation is the next arena where this is going to play itself out. And I'm afraid that in their zeal to claim victory over Big Tobacco, organizations like the Campaign for Tobacco-Free Kids are going to end up providing broad immunity to cigarette companies and greatly undermine the ability (as well as interest) of state and local governments to address the problem of tobacco use.
Thursday, February 02, 2006
On Firing Smokers: POST #3 - Inconsistency with Public Health Practice
This is the third of a three-part series devoted to this important issue. My first post presented my own plan to save employers money spent on health care and to prevent employees from having to subsidize health care costs of their fellow workers. My second post suggested that to save employers money on health care and prevent employees from having to subsidize health care costs of their fellow workers who made unwise choices, ex-smokers should also be fired.
The background for this commentary is as follows:
According to a press release issued by Action on Smoking and Health (ASH), a Washington, D.C.-based anti-smoking organization: "firing smokers is an appropriate and very effective way to stop burdening the great majority of employees who wisely chose not to smoke with the enormous unnecessary costs of smoking by their fellow employees."
The Rest of the Story
Worksite health promotion is a well-established aspect of public health. In the words of the National Institutes of Health (NIH), it provides "employees opportunities to learn and practice healthful behaviors and to integrate health promotion and disease prevention activities into all aspects of work life."
A large number of employers have worksite health promotion programs. These programs are quite diverse and they cover innumerable health behaviors and health issues, including smoking, fitness, physical activity and exercise, nutrition, mental health, ergonomics, cancer screening, blood pressure control, cholesterol control, breastfeeding, substance abuse, and a lot more.
Among the programs that I have seen included in such worksite health promotion initiatives are education, health fairs, provision of exercise facilities and walking and jogging paths, incentives for improving health behaviors and health indicators, subsidized or free smoking cessation programs and other classes, free blood pressure, cholesterol and cancer screening, nutrition programs, and a lot more.
But the one worksite health promotion program I have never seen in any other area of public health is the firing of people who exhibit the unhealthy characteristic or behavior of concern.
It is only in the anti-smoking movement that I have ever even heard of the suggestion that one appropriate and effective worksite health promotion intervention may be to simply fire employees who engage in the unhealthy behavior.
Clearly, ASH's support for firing smokers (and the failure of other anti-smoking groups to condemn this approach) indicates that the anti-smoking movement has long since left the realm of public health. It seems to be becoming a fanatical, unreasonable, extreme, draconian movement that has lost its bearing in basic public health practice.
The first class I ever took in tobacco control was called "The Public Health Practice of Tobacco Control." The title of the course emphasized that tobacco control is part of the larger practice of public health.
I'm afraid that we are in many ways no longer in the realm of public health. We are no longer part of the larger practice of public health. We're starting to go out on a quite fanatical and unreasonable and in my view, crazy limb of our own, not backed or supported by appropriate public health thinking, values, or principles.
And I don't think that limb can long survive without getting re-connected to its public health roots.
The background for this commentary is as follows:
According to a press release issued by Action on Smoking and Health (ASH), a Washington, D.C.-based anti-smoking organization: "firing smokers is an appropriate and very effective way to stop burdening the great majority of employees who wisely chose not to smoke with the enormous unnecessary costs of smoking by their fellow employees."
The Rest of the Story
Worksite health promotion is a well-established aspect of public health. In the words of the National Institutes of Health (NIH), it provides "employees opportunities to learn and practice healthful behaviors and to integrate health promotion and disease prevention activities into all aspects of work life."
A large number of employers have worksite health promotion programs. These programs are quite diverse and they cover innumerable health behaviors and health issues, including smoking, fitness, physical activity and exercise, nutrition, mental health, ergonomics, cancer screening, blood pressure control, cholesterol control, breastfeeding, substance abuse, and a lot more.
Among the programs that I have seen included in such worksite health promotion initiatives are education, health fairs, provision of exercise facilities and walking and jogging paths, incentives for improving health behaviors and health indicators, subsidized or free smoking cessation programs and other classes, free blood pressure, cholesterol and cancer screening, nutrition programs, and a lot more.
But the one worksite health promotion program I have never seen in any other area of public health is the firing of people who exhibit the unhealthy characteristic or behavior of concern.
It is only in the anti-smoking movement that I have ever even heard of the suggestion that one appropriate and effective worksite health promotion intervention may be to simply fire employees who engage in the unhealthy behavior.
Clearly, ASH's support for firing smokers (and the failure of other anti-smoking groups to condemn this approach) indicates that the anti-smoking movement has long since left the realm of public health. It seems to be becoming a fanatical, unreasonable, extreme, draconian movement that has lost its bearing in basic public health practice.
The first class I ever took in tobacco control was called "The Public Health Practice of Tobacco Control." The title of the course emphasized that tobacco control is part of the larger practice of public health.
I'm afraid that we are in many ways no longer in the realm of public health. We are no longer part of the larger practice of public health. We're starting to go out on a quite fanatical and unreasonable and in my view, crazy limb of our own, not backed or supported by appropriate public health thinking, values, or principles.
And I don't think that limb can long survive without getting re-connected to its public health roots.
On Firing Smokers: POST #2 - Ex-Smokers Should Also Be Given the Ax
Since a major national anti-smoking group has expressed support for firing smokers in the workplace in order to save employers health care costs and protect nonsmoking employees from having to "subsidize" health care costs for smokers, I feel compelled to offer a detailed commentary on this policy issue. This is the second of a three-part series devoted to this important issue. My first post presented my own plan to save employers money spent on health care and to prevent employees from having to subsidize health care costs of their fellow workers.
The background for this commentary is as follows:
According to a press release issued by Action on Smoking and Health (ASH), a Washington, D.C.-based anti-smoking organization: "firing smokers is an appropriate and very effective way to stop burdening the great majority of employees who wisely chose not to smoke with the enormous unnecessary costs of smoking by their fellow employees."
The Rest of the Story
According to the Lung Cancer Alliance, "over 60% of new lung cancers are diagnosed in people who never smoked or who managed to quit smoking even decades ago."
In fact, the majority of lung cancer cases do NOT occur in smokers. They occur in ex-smokers. Approximately 50% of lung cancer cases occur in former smokers, compared to just 35-40% in current smokers. For an employer, hiring a current smoker is statistically less likely to result in incurring high costs for the treatment of lung cancer than hiring a former smoker.
It is quite clear that ex-smokers, even if they quit a long time ago, represent a significant and substantial risk to the employer of having to face the inordinately high costs of medical treatment of these individual employees for lung cancer.
In the CPS-II cohort study, former 1+ pack per day male smokers who quit within the past year actually had the highest observed relative risk of getting lung cancer compared to male never smokers (50.7), even higher than the relative risk for current pack a day smokers (26.9). And the relative risk for lung cancer remained quite high (12.6) for former pack a day smokers who had quit up to 15 years earlier. Even former pack a day or more smokers who quit greater than or equal to 16 years previously had a relative risk of lung cancer of 5.5 (from 1990 Surgeon General's report: U.S. Department of Health and Human Services. The Health Benefits of Smoking Cessation: A Report of the Surgeon General. Atlanta, GA: Centers for Disease Control, 1990).
A study of 2,257 HMO members in California found that male former smokers actually had more physician visits than current smokers (Oakes TW, et al. Health service utilization by smokers and nonsmokers. Medical Care 1974; 12: 958-966). And another study found that male former smokers actually lose more days of work to illness than male current smokers (U.S. Department of Health and Human Services. The Health Consequences of Smoking: Cancer and Chronic Lung Disease in the Workplace. A Report of the Surgeon General. Office on Smoking and Health, 1985). And yet another study reported higher rates of chronic ilness, acute illness, and physician visits, and comparable rates of outpatient visits among former smokers (even those who quit more than one year previously) compared to current smokers (Balarajan R, et al. Smoking and state of health. British Medical Journal 1985; 291:1682).
If it is true that the "great majority of employees" who "wisely chose not to smoke" are being "burdened" with the "enormous unnecessary costs of smoking by their fellow employees," then it is certainly true as well that these employees are also being burdened with the enormous unnecessary costs of prior smoking by their fellow employees who most unwisely chose to smoke earlier in their lives.
Thus, to avoid burdening never smoking employees with the enormous unnecessary costs of smoking and prior smoking by their fellow employees, it only makes sense to fire both smokers and ex-smokers. I don't see any way that ASH could rationalize not including ex-smokers, who clearly represent an unfair burden on their employers and fellow employees because of their increased risk of disease. The data simply do not justify making a distinction between these two groups, if the concern is saving health care costs for the employer and not burdening fellow employees with unnecessary costs due to smoking by their fellow employees.
Now to tip my hat to myself, I must say that this policy of firing ex-smokers is a brilliant solution to getting around the problem of anti-discrimination laws in some states that prevent employers from making smoking a condition of employment. My policy doesn't make smoking a condition of employment. It makes previous smoking a condition of employment. Thus, in states where firing smokers is not allowed, employers can still save huge amounts of money by firing ex-smokers.
Second, my policy allows employers to retain young smokers, who are not likely to get sick, but to unload older ex-smokers, who are very likely to get sick and incur huge health care costs. And it avoids age discrimination by not basing the policy on age, but on former smoking status.
If ASH is serious about saving health care costs for employers and removing the burden on nonsmokers of the costs imposed upon them due to the poor choices of those who chose to smoke, then it should immediately call not only for the firing of smokers, but for the firing of ex-smokers as well.
In fact, there is every reason to believe that a policy of firing ex-smokers would be far more effective in saving health care dollars than a policy of firing smokers.
The background for this commentary is as follows:
According to a press release issued by Action on Smoking and Health (ASH), a Washington, D.C.-based anti-smoking organization: "firing smokers is an appropriate and very effective way to stop burdening the great majority of employees who wisely chose not to smoke with the enormous unnecessary costs of smoking by their fellow employees."
The Rest of the Story
According to the Lung Cancer Alliance, "over 60% of new lung cancers are diagnosed in people who never smoked or who managed to quit smoking even decades ago."
In fact, the majority of lung cancer cases do NOT occur in smokers. They occur in ex-smokers. Approximately 50% of lung cancer cases occur in former smokers, compared to just 35-40% in current smokers. For an employer, hiring a current smoker is statistically less likely to result in incurring high costs for the treatment of lung cancer than hiring a former smoker.
It is quite clear that ex-smokers, even if they quit a long time ago, represent a significant and substantial risk to the employer of having to face the inordinately high costs of medical treatment of these individual employees for lung cancer.
In the CPS-II cohort study, former 1+ pack per day male smokers who quit within the past year actually had the highest observed relative risk of getting lung cancer compared to male never smokers (50.7), even higher than the relative risk for current pack a day smokers (26.9). And the relative risk for lung cancer remained quite high (12.6) for former pack a day smokers who had quit up to 15 years earlier. Even former pack a day or more smokers who quit greater than or equal to 16 years previously had a relative risk of lung cancer of 5.5 (from 1990 Surgeon General's report: U.S. Department of Health and Human Services. The Health Benefits of Smoking Cessation: A Report of the Surgeon General. Atlanta, GA: Centers for Disease Control, 1990).
A study of 2,257 HMO members in California found that male former smokers actually had more physician visits than current smokers (Oakes TW, et al. Health service utilization by smokers and nonsmokers. Medical Care 1974; 12: 958-966). And another study found that male former smokers actually lose more days of work to illness than male current smokers (U.S. Department of Health and Human Services. The Health Consequences of Smoking: Cancer and Chronic Lung Disease in the Workplace. A Report of the Surgeon General. Office on Smoking and Health, 1985). And yet another study reported higher rates of chronic ilness, acute illness, and physician visits, and comparable rates of outpatient visits among former smokers (even those who quit more than one year previously) compared to current smokers (Balarajan R, et al. Smoking and state of health. British Medical Journal 1985; 291:1682).
If it is true that the "great majority of employees" who "wisely chose not to smoke" are being "burdened" with the "enormous unnecessary costs of smoking by their fellow employees," then it is certainly true as well that these employees are also being burdened with the enormous unnecessary costs of prior smoking by their fellow employees who most unwisely chose to smoke earlier in their lives.
Thus, to avoid burdening never smoking employees with the enormous unnecessary costs of smoking and prior smoking by their fellow employees, it only makes sense to fire both smokers and ex-smokers. I don't see any way that ASH could rationalize not including ex-smokers, who clearly represent an unfair burden on their employers and fellow employees because of their increased risk of disease. The data simply do not justify making a distinction between these two groups, if the concern is saving health care costs for the employer and not burdening fellow employees with unnecessary costs due to smoking by their fellow employees.
Now to tip my hat to myself, I must say that this policy of firing ex-smokers is a brilliant solution to getting around the problem of anti-discrimination laws in some states that prevent employers from making smoking a condition of employment. My policy doesn't make smoking a condition of employment. It makes previous smoking a condition of employment. Thus, in states where firing smokers is not allowed, employers can still save huge amounts of money by firing ex-smokers.
Second, my policy allows employers to retain young smokers, who are not likely to get sick, but to unload older ex-smokers, who are very likely to get sick and incur huge health care costs. And it avoids age discrimination by not basing the policy on age, but on former smoking status.
If ASH is serious about saving health care costs for employers and removing the burden on nonsmokers of the costs imposed upon them due to the poor choices of those who chose to smoke, then it should immediately call not only for the firing of smokers, but for the firing of ex-smokers as well.
In fact, there is every reason to believe that a policy of firing ex-smokers would be far more effective in saving health care dollars than a policy of firing smokers.
Illinois Supreme Court Asked to Reconsider Overturned $10 Billion Verdict
The plaintiffs in the Illinois class action lawsuit against tobacco companies, alleging that the companies fraudulently marketed "light" cigarettes, in violation of the state's consumer protection law, have asked the state Supreme Court to reconsider its decision which overturned a Madison County court's $10 billion verdict in the plaintiff's favor.
According to an article in the St. Louis Post-Dispatch, the primary basis for the request is the argument that "The Illinois Supreme Court should have asked federal regulators where they stand on marketing tactics for 'light' cigarettes before the court snuffed out a $10 billion tobacco judgment." The article states that the submitted motion "notes that the FTC was never asked specifically whether that was its universal policy on the issue. The motion requests that the court seek a specific opinion from the FTC and set a new hearing to consider it."
Apparently, this is the primary argument that will be used in an effort to convince the United States Supreme Court to review the decision. The lead plaintiff's attorney was quoted as saying: "The court's reliance on a misinterpretation of FTC action necessarily creates a basis for review before the United States Supreme Court."
The Rest of the Story
I don't believe that there is a sufficient basis for the Illinois Supreme Court to reconsider its ruling or for the Supreme Court to review this case, and even if there were some slight basis for the latter, I don't think it is substantial enough that the Supreme Court will have any interest in reviewing the case.
First, I don't see any particular need for the Illinois Supreme Court to have to conduct its own inquiry into the matter, rather than to rely on the evidence presented at trial. Is it not the plaintiff's responsibility to prove to the Court that state law has been violated, rather than the duty of the Defendants to prove that state law has not been violated? And is the burden not on the plaintiffs to provide evidence to the Court, rather than for the Court to have to perform its own inquiry?
It seems to me that the Court conducted a thorough and comprehensive review of Federal Trade Commission (FTC) actions related to the issue of "low-tar" and "light" cigarettes. Whether they misinterpreted FTC actions is a separate issue, but I see nothing to indicate that their review was not appropriate or that there is some need for the Court to seek a statement from the FTC.
Second, the other primary basis on appeal seems to be the argument that the Court misinterpreted FTC action: presumably, misinterpreting a consent agreement as representing a universal policy on the part of the Commission.
Unfortunately, I don't find that argument to be compelling. In my mind, an FTC consent agreement with one tobacco company does, in fact, seem to suggest a universal policy that other companies would be expected to follow. The converse of that would seem to represent inconsistent policy and unequal application of the law.
Remember that the most relevant consent order was issued in 1971 and involved a complaint against American Brands for implying in its advertising that certain cigarettes were low-tar: "The dispute between the FTC and American Brands was resolved in 1971, with the entry of a consent order that required American Brands to cease and desist from: Stating in advertising that any cigarette manufactured by it, or the smoke therefrom is low or lower in ‘tar’ by use of the words ‘low, ‘lower,’ or ‘reduced’ or like qualifying terms, unless the statement is accompanied by a clear and conspicuous disclosure of: 1. The ‘tar’ and nicotine content in milligrams of the smoke produced by the advertised cigarette; and 2. If the ‘tar’ content of the advertised brand is compared to that of another brand or brands of cigarette, (a) the ‘tar’ and nicotine content in milligrams of the smoke produced by that brand or those brands of cigarette, and (b) the ‘tar’ and nicotine content in milligrams of the lowest yield domestic cigarette.” American Brands, 79 F.T.C. at 225."
Imagine, for example, that the FTC allowed American Brands to advertise cigarettes as low-tar according to the provisions outlined above, but later, did not allow Philip Morris to advertise cigarettes as low-tar at all. Even though the original consent order with American Brands could not be argued to hold the full force of law with regard to Philip Morris, it would be difficult to maintain that the FTC's actions were consistent with the law. This would seem to represent a clear example of unequal and inconsistent application of the law.
Thus, I do not find it unreasonable for Philip Morris to assume that the consent order with American Brands provided conditions for the use of the "low-tar" terminology that could be expected to apply to it as well as American Brands.
But that's not even really the central issue. The central issue is whether the Illinois Supreme Court could reasonably construe the consent order with American Brands (and the entirety of FTC actions on low-tar and light cigarettes) as "specifically authorizing" the advertising of light cigarettes by virtue of the FTC's regulatory application of the Federal Cigarette Labeling and Advertising Act.
And I don't find that to be a particularly unreasonable interpretation of the practical effect or intent of the consent order.
True, as a matter of the force of law, the consent order did not bind FTC from dealing differently with other companies. But as a practical matter, I think that it did bind FTC. Because a federal agency cannot willy nilly apply the law differently to different companies. The reason why the consent order only had the formal force of law with American Brands was simply that American Brands was the company about which a complaint had been filed, and which was therefore party to the consent order. It was not that somehow American Brands' actions were to be regulated differently than those of other companies because of some peculiarity about American Brands that did not apply to Philip Morris and other companies.
Thus, I simply do not see any terrible or substantial misinterpretation of the FTC's actions that would either necessitate Supreme Court review, or secondly, that, even if potentially suggesting that there might be an issue that could be reviewed, that the potential misinterpretation is substantial enough to interest the Supreme Court in taking this on.
As I suggested on December 21, I think this decision is final.
According to an article in the St. Louis Post-Dispatch, the primary basis for the request is the argument that "The Illinois Supreme Court should have asked federal regulators where they stand on marketing tactics for 'light' cigarettes before the court snuffed out a $10 billion tobacco judgment." The article states that the submitted motion "notes that the FTC was never asked specifically whether that was its universal policy on the issue. The motion requests that the court seek a specific opinion from the FTC and set a new hearing to consider it."
Apparently, this is the primary argument that will be used in an effort to convince the United States Supreme Court to review the decision. The lead plaintiff's attorney was quoted as saying: "The court's reliance on a misinterpretation of FTC action necessarily creates a basis for review before the United States Supreme Court."
The Rest of the Story
I don't believe that there is a sufficient basis for the Illinois Supreme Court to reconsider its ruling or for the Supreme Court to review this case, and even if there were some slight basis for the latter, I don't think it is substantial enough that the Supreme Court will have any interest in reviewing the case.
First, I don't see any particular need for the Illinois Supreme Court to have to conduct its own inquiry into the matter, rather than to rely on the evidence presented at trial. Is it not the plaintiff's responsibility to prove to the Court that state law has been violated, rather than the duty of the Defendants to prove that state law has not been violated? And is the burden not on the plaintiffs to provide evidence to the Court, rather than for the Court to have to perform its own inquiry?
It seems to me that the Court conducted a thorough and comprehensive review of Federal Trade Commission (FTC) actions related to the issue of "low-tar" and "light" cigarettes. Whether they misinterpreted FTC actions is a separate issue, but I see nothing to indicate that their review was not appropriate or that there is some need for the Court to seek a statement from the FTC.
Second, the other primary basis on appeal seems to be the argument that the Court misinterpreted FTC action: presumably, misinterpreting a consent agreement as representing a universal policy on the part of the Commission.
Unfortunately, I don't find that argument to be compelling. In my mind, an FTC consent agreement with one tobacco company does, in fact, seem to suggest a universal policy that other companies would be expected to follow. The converse of that would seem to represent inconsistent policy and unequal application of the law.
Remember that the most relevant consent order was issued in 1971 and involved a complaint against American Brands for implying in its advertising that certain cigarettes were low-tar: "The dispute between the FTC and American Brands was resolved in 1971, with the entry of a consent order that required American Brands to cease and desist from: Stating in advertising that any cigarette manufactured by it, or the smoke therefrom is low or lower in ‘tar’ by use of the words ‘low, ‘lower,’ or ‘reduced’ or like qualifying terms, unless the statement is accompanied by a clear and conspicuous disclosure of: 1. The ‘tar’ and nicotine content in milligrams of the smoke produced by the advertised cigarette; and 2. If the ‘tar’ content of the advertised brand is compared to that of another brand or brands of cigarette, (a) the ‘tar’ and nicotine content in milligrams of the smoke produced by that brand or those brands of cigarette, and (b) the ‘tar’ and nicotine content in milligrams of the lowest yield domestic cigarette.” American Brands, 79 F.T.C. at 225."
Imagine, for example, that the FTC allowed American Brands to advertise cigarettes as low-tar according to the provisions outlined above, but later, did not allow Philip Morris to advertise cigarettes as low-tar at all. Even though the original consent order with American Brands could not be argued to hold the full force of law with regard to Philip Morris, it would be difficult to maintain that the FTC's actions were consistent with the law. This would seem to represent a clear example of unequal and inconsistent application of the law.
Thus, I do not find it unreasonable for Philip Morris to assume that the consent order with American Brands provided conditions for the use of the "low-tar" terminology that could be expected to apply to it as well as American Brands.
But that's not even really the central issue. The central issue is whether the Illinois Supreme Court could reasonably construe the consent order with American Brands (and the entirety of FTC actions on low-tar and light cigarettes) as "specifically authorizing" the advertising of light cigarettes by virtue of the FTC's regulatory application of the Federal Cigarette Labeling and Advertising Act.
And I don't find that to be a particularly unreasonable interpretation of the practical effect or intent of the consent order.
True, as a matter of the force of law, the consent order did not bind FTC from dealing differently with other companies. But as a practical matter, I think that it did bind FTC. Because a federal agency cannot willy nilly apply the law differently to different companies. The reason why the consent order only had the formal force of law with American Brands was simply that American Brands was the company about which a complaint had been filed, and which was therefore party to the consent order. It was not that somehow American Brands' actions were to be regulated differently than those of other companies because of some peculiarity about American Brands that did not apply to Philip Morris and other companies.
Thus, I simply do not see any terrible or substantial misinterpretation of the FTC's actions that would either necessitate Supreme Court review, or secondly, that, even if potentially suggesting that there might be an issue that could be reviewed, that the potential misinterpretation is substantial enough to interest the Supreme Court in taking this on.
As I suggested on December 21, I think this decision is final.
Wednesday, February 01, 2006
Attorney Who Helped Start Smoking Litigation Threatens Lawsuits Against School Boards Over Coke Machines
According to an email released today, an attorney who helped start a campaign "to use legal action as a weapon against the public health problem of smoking" has apparently threatened school boards and their members with lawsuits in order to try to scare them into thinking that they will be held liable for providing soft drinks to children in their schools, and to therefore change their behavior with regard to provision of these soft drinks.
The email, which was apparently sent to school boards and school board members (this is based on the "TO" line of the email - there is no indication of exactly who the email was sent to), threatens these individuals and organizations by stating that they may be sued and potentially held liable for providing Coke, Pepsi, and other soft drinks to students, in light of the "evidence" that the availability of soft drinks at schools is a major cause of obesity.
The email states: "Although current plans do not call for school boards or school board members to be included as named parties in the initial round of law suits, it is clear that school boards, and probably individual school board members, will nevertheless become involved in several ways. For example, even if they are never brought in as parties in the law suits, their unique role in the arrangements attacked by the law suits brought against bottlers will inevitably involve them as targets of pre-trial discovery seeking documents and their testimony under oath, requiring their testimony at any trials, their involvement in settlement discussions, and possibly -- if sought by the bottlers in actions for third-party contributions [i.e., to share in the legal liability] -- to pay any penalties for alleged breach of contract and/or other damages."
"For more serious is the real possibility that school boards -- and possibly even individual school board members -- will become involved as named parties to these law suits. ...as the result of pre-trial discovery of previously unknown facts -- e.g., secret memos or minutes of school board meetings, "wining and dining" of school board members or other benefits to them, etc. -- the pleading by the initial plaintiffs could be amended to include new parties such as school board members."
"School boards -- and in some cases even individual school board members -- could be sued and potentially held liable under a variety of legal theories ("causes of action"). ... School boards -- and perhaps even individual school board members -- could be sued for breaching their duty to protect the students who attend the school. It could be alleged that, in view of the overwhelming body of scientific and medical evidence that the availability of sugary soft drinks at schools is a major factor in causing obesity -- not only because of the unnecessary calories actually consumed in school, but also by the impact such at-school consumption has on children's eating and drinking habits outside of the school venue -- the school board was negligent (did not exercise reasonable care) in providing these sugary soft drinks to students. After all, if a court can conclude, in view of supposedly widely recognized dangers of dodge ball, that it was negligent for a school to permit young children to play the game at school, it can even more easily conclude that, in view of the more clearly known dangers of sugary soft drinks, it is negligent to serve them in schools. ..."
"It could also be argued, in the alternative, that given the well-known dangers of providing sugary soft drinks in schools, the actions of the school board were intentional rather than merely negligent in the sense that they knew with "substantial certainty" that the decision would result in some health harm to at least some of the children (even if that was not their purpose)."
"The initial law suits will be filed in Massachusetts very shortly, and soon thereafter similar class action law suits will be filed in a number of additional states. It therefore would seem to be appropriate if not imperative that school boards and their members take at least some preliminary actions at their earliest convenience regarding their involvement and potential legal liability."
The Rest of the Story
This is, in my view, a quite serious threat of legal action against school boards and individual school board members for allowing soft drinks to be available in schools.
Before even discussing the legal issues, it seems to me that such a threat is inappropriate and is going to cause undue fear among school board members. The apparent intent of the letter, in my view, is to intimidate school boards and their members into removing these machines from the schools in order to eliminate any possibility of their own liability.
This is completely inappropriate for many reasons, not the least of which is the fact that there has never been any case in which school board members have been held liable for allowing a Coke machine in a school.
I don't find it appropriate or responsible to use the threat of legal action on a mass scale, especially if unfounded and without legal precedent, to try to intimidate individuals into action, even if that action is viewed as something that would protect the public's health.
That's the weakest part of my argument.
The strongest part, I think, is my contention that such a lawsuit would be completely baseless and frivolous. In order to prevail, a suing plaintiff would have to show that Coke and Pepsi machines, or the products therein, are dangerous to kids. I'm quite sure that there is no credible evidence to that effect.
I think the strongest possible argument would be that if kids were running around recklessly in school, which they have been known to do, a kid could run into a Coke or Pepsi machine and suffer a serious head injury. As evidence, plaintiffs could introduce as evidence a recent Diet Pepsi commercial in which the New England Patriots were shown drafting a Pepsi machine to join their football team.
I think the case goes downhill from there.
It simply is not the case that drinking a Coke or a Pepsi is harmful. And I'm not aware of any evidence that drinking lots of Coke's or lots of Pepsi's is necessarily harmful. I don't think that one could successfully argue that the availability of Coke and Pepsi in schools is a major cause of obesity in the first place. And if I don't know of any evidence linking Coke and Pepsi availability in schools to obesity, I don't see how a school board member, whose job is not necessarily to keep up with the public health and epidemiologic literature, could be expected to be aware of such evidence. And one certainly could not credibly argue that school board members knew the risks of harm with "substantial certainty."
The analogy to dodge ball is ridiculous. If a dodge ball hits a kid in the face, they will likely be injured. There is no way that drinking a Coke or Pepsi could be harmful to a kid, unless that kid is diabetic, and if that's the case, they should know not to drink it, or at least, to stick with a diet Coke or diet Pepsi. Or, if a Coke or Pepsi were being thrown at kids in lieu of a dodge ball. If kids were using soft drink cans to play "dodge ball," then I think there might be a case.
The rest of the story is that this seems to be an example of public health run amuck. If this is the contribution that tobacco litigation has made to public health, then I think it's a shame. I think it's up to the public health community, and especially to those of us who have been involved in tobacco litigation, to make it clear that this type of behavior is not acceptable, and that it is not a legitimate public health action.
What will be next? A threatening note to parents suggesting that they may be held personally liable if they serve soft drinks or juices to their kids' friends, knowing full well that such beverages are likely to cause harm and to induce obesity?
The email, which was apparently sent to school boards and school board members (this is based on the "TO" line of the email - there is no indication of exactly who the email was sent to), threatens these individuals and organizations by stating that they may be sued and potentially held liable for providing Coke, Pepsi, and other soft drinks to students, in light of the "evidence" that the availability of soft drinks at schools is a major cause of obesity.
The email states: "Although current plans do not call for school boards or school board members to be included as named parties in the initial round of law suits, it is clear that school boards, and probably individual school board members, will nevertheless become involved in several ways. For example, even if they are never brought in as parties in the law suits, their unique role in the arrangements attacked by the law suits brought against bottlers will inevitably involve them as targets of pre-trial discovery seeking documents and their testimony under oath, requiring their testimony at any trials, their involvement in settlement discussions, and possibly -- if sought by the bottlers in actions for third-party contributions [i.e., to share in the legal liability] -- to pay any penalties for alleged breach of contract and/or other damages."
"For more serious is the real possibility that school boards -- and possibly even individual school board members -- will become involved as named parties to these law suits. ...as the result of pre-trial discovery of previously unknown facts -- e.g., secret memos or minutes of school board meetings, "wining and dining" of school board members or other benefits to them, etc. -- the pleading by the initial plaintiffs could be amended to include new parties such as school board members."
"School boards -- and in some cases even individual school board members -- could be sued and potentially held liable under a variety of legal theories ("causes of action"). ... School boards -- and perhaps even individual school board members -- could be sued for breaching their duty to protect the students who attend the school. It could be alleged that, in view of the overwhelming body of scientific and medical evidence that the availability of sugary soft drinks at schools is a major factor in causing obesity -- not only because of the unnecessary calories actually consumed in school, but also by the impact such at-school consumption has on children's eating and drinking habits outside of the school venue -- the school board was negligent (did not exercise reasonable care) in providing these sugary soft drinks to students. After all, if a court can conclude, in view of supposedly widely recognized dangers of dodge ball, that it was negligent for a school to permit young children to play the game at school, it can even more easily conclude that, in view of the more clearly known dangers of sugary soft drinks, it is negligent to serve them in schools. ..."
"It could also be argued, in the alternative, that given the well-known dangers of providing sugary soft drinks in schools, the actions of the school board were intentional rather than merely negligent in the sense that they knew with "substantial certainty" that the decision would result in some health harm to at least some of the children (even if that was not their purpose)."
"The initial law suits will be filed in Massachusetts very shortly, and soon thereafter similar class action law suits will be filed in a number of additional states. It therefore would seem to be appropriate if not imperative that school boards and their members take at least some preliminary actions at their earliest convenience regarding their involvement and potential legal liability."
The Rest of the Story
This is, in my view, a quite serious threat of legal action against school boards and individual school board members for allowing soft drinks to be available in schools.
Before even discussing the legal issues, it seems to me that such a threat is inappropriate and is going to cause undue fear among school board members. The apparent intent of the letter, in my view, is to intimidate school boards and their members into removing these machines from the schools in order to eliminate any possibility of their own liability.
This is completely inappropriate for many reasons, not the least of which is the fact that there has never been any case in which school board members have been held liable for allowing a Coke machine in a school.
I don't find it appropriate or responsible to use the threat of legal action on a mass scale, especially if unfounded and without legal precedent, to try to intimidate individuals into action, even if that action is viewed as something that would protect the public's health.
That's the weakest part of my argument.
The strongest part, I think, is my contention that such a lawsuit would be completely baseless and frivolous. In order to prevail, a suing plaintiff would have to show that Coke and Pepsi machines, or the products therein, are dangerous to kids. I'm quite sure that there is no credible evidence to that effect.
I think the strongest possible argument would be that if kids were running around recklessly in school, which they have been known to do, a kid could run into a Coke or Pepsi machine and suffer a serious head injury. As evidence, plaintiffs could introduce as evidence a recent Diet Pepsi commercial in which the New England Patriots were shown drafting a Pepsi machine to join their football team.
I think the case goes downhill from there.
It simply is not the case that drinking a Coke or a Pepsi is harmful. And I'm not aware of any evidence that drinking lots of Coke's or lots of Pepsi's is necessarily harmful. I don't think that one could successfully argue that the availability of Coke and Pepsi in schools is a major cause of obesity in the first place. And if I don't know of any evidence linking Coke and Pepsi availability in schools to obesity, I don't see how a school board member, whose job is not necessarily to keep up with the public health and epidemiologic literature, could be expected to be aware of such evidence. And one certainly could not credibly argue that school board members knew the risks of harm with "substantial certainty."
The analogy to dodge ball is ridiculous. If a dodge ball hits a kid in the face, they will likely be injured. There is no way that drinking a Coke or Pepsi could be harmful to a kid, unless that kid is diabetic, and if that's the case, they should know not to drink it, or at least, to stick with a diet Coke or diet Pepsi. Or, if a Coke or Pepsi were being thrown at kids in lieu of a dodge ball. If kids were using soft drink cans to play "dodge ball," then I think there might be a case.
The rest of the story is that this seems to be an example of public health run amuck. If this is the contribution that tobacco litigation has made to public health, then I think it's a shame. I think it's up to the public health community, and especially to those of us who have been involved in tobacco litigation, to make it clear that this type of behavior is not acceptable, and that it is not a legitimate public health action.
What will be next? A threatening note to parents suggesting that they may be held personally liable if they serve soft drinks or juices to their kids' friends, knowing full well that such beverages are likely to cause harm and to induce obesity?
On Firing Smokers: POST #1 - Cleansing the Workplace to Reduce Health Care Costs
Since a major national anti-smoking group has expressed support for firing smokers in the workplace in order to save employers health care costs and protect nonsmoking employees from having to "subsidize" health care costs for smokers, I feel compelled to offer a detailed commentary on this policy issue. This is the first of a three-part series devoted to this important issue.
The background for this commentary is as follows:
According to a press release issued by Action on Smoking and Health (ASH), a Washington, D.C.-based anti-smoking organization: "firing smokers is an appropriate and very effective way to stop burdening the great majority of employees who wisely chose not to smoke with the enormous unnecessary costs of smoking by their fellow employees."
The Rest of the Story
If ASH is truly concerned about the health care costs borne by employers and the burdens on healthy employees of subsidizing the costs of health care for those who are ill because of poor personal choices, then I think there is a far more effective way of accomplishing its objectives.
I call it my Workplace Cleansing Program. The idea is to cleanse the workplace of people who burden their fellow employees by incurring increased health care costs. Here's how it works:
Every year, the employer provides a questionnaire to employees inquiring about their behaviors and use of health care in the past year. Employers are asked to report the number of emergency room visits they and their covered spouse and dependents made during the previous year, the number of inpatient hospitalizations, the number of outpatient hospitalizations, the number of surgeries, their most recent cholesterol level, their most recent blood pressure reading, their weight and height, and the number of servings of eggs, steak, french fries, and Krispy Kreme donuts they eat during an average week. And here's the policy:
There are a fair number of smokers, especially those who are young or who smoke less than a pack per day, who do not incur any health care expenses. And there are a large number of nonsmokers who, for other reasons than tobacco use, incur huge amounts of health care costs.
So to base your entire policy solely on smoking makes little sense. Why not simply base the policy on actual health care use and expenses. This is a far more efficient system, covers all possible causes of increased health care costs rather than just smoking, serves as a tremendous incentive to reduce not just smoking, but to also change other health behaviors, and to address a number of burgeoning public health problems, including the growing problem of overindulgence in Krispy Kremes, which is poised to soon over take Dunkin Donuts as the leading cause of donut-induced obesity.
It also avoids the problem of using just a single question to assess smoking. Such a policy, in which smoking is the only criterion for firing employees, treats all smokers the same, whether one smokes 1 cigarette per week, or 80 cigarettes per day. My policy, on the other hand, is based on actual use of the health care system, so it automatically accounts for differences in cigarette consumption, which will be reflected by different rates of hospital and emergency room use and the need for expensive surgery.
It is also far more fair of a system, because it doesn't penalize light smokers for health care costs that are actually being incurred by heavy smokers. Plus, nonsmokers who are being irresponsible and using their nonsmoking status to allow them to abuse french fries, eschew physical activity, and pay no heed to their weight, blood pressure, or cholesterol, will now be caught for unfairly burdening their fellow employees with their own health care costs.
Finally, my policy, unlike what ASH is apparently calling for, addresses the tremendous problem of health care costs imposed by the spouses and dependents of employees who are also covered by the employer's health insurance plans. No longer would you be able to burden your fellow employees by allowing your wife or children to engage in reckless health behavior.
Within one short year, the workplace would be completely cleansed of those who, because of their unwise personal choices, have been burdening their employers and fellow employees who wisely chose not to engage in behaviors that increase the risk of disease and conditions requiring expensive medical treatment. The savings in workplace health care costs would be immense, there would be a dramatic effect on the public's health (including, I predict, a 40% drop in heart attacks within the first year), and the problem of people keeling over from a heart attack due to spending 30 minutes in a Krispy Kreme store would be all but solved.
The background for this commentary is as follows:
According to a press release issued by Action on Smoking and Health (ASH), a Washington, D.C.-based anti-smoking organization: "firing smokers is an appropriate and very effective way to stop burdening the great majority of employees who wisely chose not to smoke with the enormous unnecessary costs of smoking by their fellow employees."
The Rest of the Story
If ASH is truly concerned about the health care costs borne by employers and the burdens on healthy employees of subsidizing the costs of health care for those who are ill because of poor personal choices, then I think there is a far more effective way of accomplishing its objectives.
I call it my Workplace Cleansing Program. The idea is to cleanse the workplace of people who burden their fellow employees by incurring increased health care costs. Here's how it works:
Every year, the employer provides a questionnaire to employees inquiring about their behaviors and use of health care in the past year. Employers are asked to report the number of emergency room visits they and their covered spouse and dependents made during the previous year, the number of inpatient hospitalizations, the number of outpatient hospitalizations, the number of surgeries, their most recent cholesterol level, their most recent blood pressure reading, their weight and height, and the number of servings of eggs, steak, french fries, and Krispy Kreme donuts they eat during an average week. And here's the policy:
- If you or your covered spouse and dependents report more than a total of 3 emergency room visits in the past year, you are fired.
- If you or your covered spouse and dependents report more than a total of 1 inpatient hospitalization during the past year, you are fired.
- If you or your covered spouse and dependents report more than 2 outpatient hospitalization during the past year, you are fired.
- If you or your covered spouse and dependents report any surgeries during the past year, you are fired.
- If your cholesterol or that of any covered family member is greater than 240, you are fired.
- If your body mass index is greater than 30, you are fired.
- If your blood pressure is greater than 160 (systolic) or 100 (diastolic), you are fired.
- If you eat more than 3 servings of eggs, steak, or french fries per week, you are fired.
- If you eat more than 10 Krispy Kreme donuts per week, you are fired.
There are a fair number of smokers, especially those who are young or who smoke less than a pack per day, who do not incur any health care expenses. And there are a large number of nonsmokers who, for other reasons than tobacco use, incur huge amounts of health care costs.
So to base your entire policy solely on smoking makes little sense. Why not simply base the policy on actual health care use and expenses. This is a far more efficient system, covers all possible causes of increased health care costs rather than just smoking, serves as a tremendous incentive to reduce not just smoking, but to also change other health behaviors, and to address a number of burgeoning public health problems, including the growing problem of overindulgence in Krispy Kremes, which is poised to soon over take Dunkin Donuts as the leading cause of donut-induced obesity.
It also avoids the problem of using just a single question to assess smoking. Such a policy, in which smoking is the only criterion for firing employees, treats all smokers the same, whether one smokes 1 cigarette per week, or 80 cigarettes per day. My policy, on the other hand, is based on actual use of the health care system, so it automatically accounts for differences in cigarette consumption, which will be reflected by different rates of hospital and emergency room use and the need for expensive surgery.
It is also far more fair of a system, because it doesn't penalize light smokers for health care costs that are actually being incurred by heavy smokers. Plus, nonsmokers who are being irresponsible and using their nonsmoking status to allow them to abuse french fries, eschew physical activity, and pay no heed to their weight, blood pressure, or cholesterol, will now be caught for unfairly burdening their fellow employees with their own health care costs.
Finally, my policy, unlike what ASH is apparently calling for, addresses the tremendous problem of health care costs imposed by the spouses and dependents of employees who are also covered by the employer's health insurance plans. No longer would you be able to burden your fellow employees by allowing your wife or children to engage in reckless health behavior.
Within one short year, the workplace would be completely cleansed of those who, because of their unwise personal choices, have been burdening their employers and fellow employees who wisely chose not to engage in behaviors that increase the risk of disease and conditions requiring expensive medical treatment. The savings in workplace health care costs would be immense, there would be a dramatic effect on the public's health (including, I predict, a 40% drop in heart attacks within the first year), and the problem of people keeling over from a heart attack due to spending 30 minutes in a Krispy Kreme store would be all but solved.
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