Tobacco Watch

TOBACCO WATCH

What We All Should Know About Tobacco

...if we had paid attention all those years between high school civics and last week

By Mark Vorzimmer

Smoking is bad for you. Your mother and the Surgeon General have beenwarning you for years.
Politicians have accepted some of their largest political contributionsfrom the tobacco industry over the last 200 years.á The Constitution does not grant or imply federal government authority overtobacco. The proposed national settlement would change this with specificwording which would recognize the FDA's authority over tobacco for the firsttime.
The "general welfare" reference in the Preamble to the Constitution andthe Constitution proper does not grant or imply federal governmentregulatory control over cigarettes or tobacco products in any familiarexposition of either document (even if they are bad for you).
The "To regulate commerce..." passage of the U.S. Constitution wasprimarily directed at the states by the federal government for the purposesof formulating a consistent U.S. trade policy with foreign nations, and notmeant to allow or imply that the government could sue anyone over anything.
Jurisprudence in the United States is based on the theoretical assumptionthat a person or entity is "innocent until proven guilty." No person orentity affiliated with the tobacco industry has ever been convicted of acrime in a tobacco-related case. The tobacco industry has only recently lostits first civil case (see Feb., Newsworthy). All tobacco-related settlementshave occurred as a result of political perception (supported by scientificevidence), or perhaps more directly, a public perception that smoking is badand therefore tobacco companies must pay money to someone. In short, thetobacco industry is guilty until proven innocent.
There is little precedent in the law to support the contention that if aproduct is legal to sell, and someone is made sufficiently aware of therisks associated with the use of such a product, that anyone should be foundliable if the product is used with negative consequences. Any conditionsunder which this occurs would, if contested, raise constitutional issues(not to mention open up a Pandora's box of new litigation possibilities.) Asan interesting sidenote, the tobacco companies do not sell their ownproducts directly to customers.
The federal government has subsidized tobacco production for generations,and in 1996 alone spent $97 million on tobacco subsidies. As a point infact, government has dispensed, grown and sold their own tobacco productsduring many periods throughout history.
There is no precedent, political or legal, in which something is madeundesirable, then applied retroactively back to the day the undesirable actbegan (i.e., tobacco companies producing tobacco products). There is,however, a specific passage in the U.S. Constitution which prohibits thisphenomenon. It reads "No bill of attainder or ex post facto law shall bepassed." Although one may argue that no law has been passed which makestobacco products retroactively illegal, the result of holding tobaccocompanies responsible for past usage of their products, by grand civiljudgements (or settlements to avoid judgements) is effectively the same.
Government and industry together have avoided the more sticky issue ofcausal links that may exist between an individual's illness and his smokingcigarettes, in favor of aggregate statistics indicating certain illnessesare more prevalent among smokers. Although this may be by necessity (owingto the number of smokers and/or potential lawsuits), only the imaginationcould limit the idea of other links that may exist, say, between heartdisease and fast food, among other things.
Last year's proposed national settlement would have the tobacco industrypaying out $368.5 billion in damages to the federal government over 25years, with $193 billion to be divided up among 41 states. In return, thecompanies would get immunity from further class-action litigation, plus capson damages in individual suits.
States such as Florida and Texas have struck their own settlement deals,which would be superceded by the national agreement, were it ever signedinto law by Congress.
Any settlement that provides broad immunity from future liability may beunconstitutional.
If the government, on any level, sues to recoup medicaid funds, the publicis the victim and the client. The short version of this concept might bebest understood by paraphrasing Yogi Berra...If the public doesn't want tosue themselves for too much money, nobody can stop them. Such mind-numbinglegal complexities, along with the huge sums of money involved, conceal thefact that trial lawyers are the only ones getting an unfettered "take."
Both the national and state agreements have run into some trouble with themagnitude of the lawyers' fees; the direction of the funds (i.e., how muchthe feds get vs. how much the states get); the use of the money; and whetherthe tobacco industry should be granted any immunity from future litigation.Or, more succinctly, how much money, who gets the money, who gets to goshopping, and whether there's any more money to get.
The White House all but sabotaged the national settlement when theyblessed a new bill (the Conrad bill), which would cost the tobacco companies$200 billion more than the original settlement; impose tougher regulations;crack down on exports; and provide less immunity to the tobacco companies.
Every trial lawyer in America, besides those "in" on the variousagreements, is firmly opposed to the agreements because of the impact theywould have on liability limits in the future.
Any prohibition on smoking, chewing or otherwise ingesting tobaccoproducts in the U.S. may be unconstitutional.
U.S. regulators are about to attack cigars.
Interestingly, no one appears to be too alarmed at the imposing consequenceof states allowing the nation's largest contingency-fee lawyers to wieldtheir power against politically friendless businesses.

From high school civics courses, all the way to modern day politicalwrangling, smokers are about to end up back where they came from: behind thefootball stadium sneaking a puff. Only this time they'll be back there witha whole lot of others....A recent study found that 300,000 Americans dieeach year from obesity. A Yale physician is proposing a tax on certainhigh-fat or high-calorie foods. For my part, I'm producing bumper stickers:"If hotdogs are outlawed, only the outlaws will have hotdogs." Stick 'em up!