Policy Documents

Smoking Under Siege: Why It Matters to You

Joseph L. Bast –
June 1, 1997

If you don't smoke, you may think the commotion over tobacco in recent months doesn't matter to you. You would be wrong.

Whether or not you smoke, the outcome of the war on tobacco will affect your civil and economic liberties in major ways. If tobacco companies are compelled to pay individual smokers or their families for the consequences of a voluntary and informed decision to smoke, the legal and moral tradition of self-responsibility will suffer a major setback. And if government can cash in on what ought to be a legal matter between an industry and its customers, the doors will open to government-led shakedowns of industries that produce a wide variety of products and services, including many that you use.

Before I go any further, let me disclose two facts. First, I am an on-again, off-again (but mostly on-again) smoker, having moved through cigarettes to a pipe and now cigars. I love 'em all. Second, Philip Morris, the nation's largest cigarette maker, contributes modestly to The Heartland Institute. This article will come as a surprise to the folks at Philip Morris, however, since they have never asked us to write on this subject and have made it clear that they fund us for reasons other than my opinions on tobacco.

Why Now? And Why Cigarettes?

There have always been critics of cigarettes, but the anti-smoking campaign appears to be reaching critical mass today. One reason was the settlement of a class action lawsuit against the manufacturers of silicon breast implants. Trial lawyers discovered that by forcing a major industry to settle out of court rather than contest thousands of lawsuits, they could win hundreds of millions of dollars in fees...even when the balance of scientific evidence did not support their courtroom claims.

A group of multi-millionaire trial lawyers has pooled its resources to hound tobacco companies in court, knowing it stands to win billions of dollars in contingency fees if it starts winning or can intimidate tobacco companies into a multi-billion dollar settlement. Most of the 32 states that are also suing tobacco companies have brought in lawyers from the private sector on a contingency fee basis to argue their Medicaid cases. These lawyers are funding liberal advocacy groups, such as Public Citizen, to put a "public interest" face on what they really want.

The number of smokers relative to the rest of the population has fallen to the point where politicians can now satisfy majority opinions and biases by attacking smokers. The state attorneys general who have filed suit against the tobacco companies are elected officials who know that filing billion-dollar lawsuits against an unpopular industry heightens their name recognition and might advance their careers. And President Clinton, a leading spokesperson against smoking, is an expert at championing causes that are popular but unrelated to the job of being President.

Another engine driving the anti-smoking campaign is the federal government bureaucracy. David Kessler, former commissioner of the FDA, used the agency to launch a fierce anti-smoking campaign. Kessler's campaign conveniently meshed with his anti-corporate ideology, desire to increase the power and budget of his government agency, an need to divert attention from the carnage caused by the FDA's failure to give speedy approval to life-saving drugs. Kessler is no longer at the FDA, but the agency's campaign continues. Along with money from trial lawyers, grants from the FDA and other government agencies are financing a large part of the so-called "independent sector" of the anti-smoking movement.

Gutting Personal Responsibility

Tobacco companies have been amazingly effective at winning court cases brought against them by smokers and their allies. The reasons are that any specific case of lung cancer may or may not have been caused by the victim's smoking, and smokers are well aware of the health risks of smoking but choose to continue smoking anyway. Juries conclude, correctly, that decades of warnings printed on cigarette packages, public service notices, and warnings from doctors make smokers themselves responsible for their actions.

The campaign against cigarette manufacturers seeks to overturn the presumption of self-responsibility. What makes the case remarkable is that it potentially involves over a quarter of the total population of the U.S. and a product that has been legally sold for over 100 years. It would gut personal responsibility despite overwhelming evidence that smokers understand (and even over-estimate, according to most research on your subject) the health risks that come with their habits; despite the fact that the general public believes (according to a March 1997 Gallup poll) by a 66 percent to 28 percent margin that smokers, not tobacco companies, should be held legally responsible for the consequences of smoking.

If the presumption of self-responsibility is overturned in the case of tobacco, how long before it is overturned in the case of beer and alcohol? How long before everything from diseased livers to broken marriages and car accidents become the fault of Big Brewers instead of individual drinkers?

Beyond Alcohol and Tobacco

Beyond cigarettes, beer, and alcohol lies a lawyer's dream of opportunities for litigation...and a consumer's nightmare. Most foods contain small traces of naturally occurring carcinogens that may contribute to the number of cancer cases occurring in the U.S. Why not file a class action lawsuit against farmers? While we're at it, let's file a second suit against those who produce foods that are high in fat and cholesterol. Automobiles could be made safer than they are (at the expense of gas mileage, speed, affordability, and other values); why not sue Chrysler, Ford, and General Motors every time a car accident occurs?

Success of the campaign against tobacco would mean open season on the manufacturers of everything from bicycles and swimming pools to paint and pesticides. All of these things pose small risks to users who are not careful, in return for large social benefits. Each is more or less legally protected now thanks to the presumption of self-responsibility. That presumption comes to an end of the anti-smoking forces win the tobacco wars.

But it is worse than that. The tobacco suits filed by the state attorneys general call for retroactive liability – liability after the fact for doing something that was at the time held to produce no liability. Such a novel legal theory would profoundly shake public confidence in the law as it is now written and interpreted. Business could see huge changes to their bottom lines overnight as liabilities (or potential liabilities) are suddenly discovered, too late to change conduct to avoid committing the tort. The rewards to lawyers for successful litigation or settlements would be multiplied enormously, further fueling a litigation explosion.
But it is even worse than that. A precedent would be set that an industry must pay government, not its victims, for committing a "retroactive tort." This raises all sorts of questions, including the motivation and knowledge problems facing government agencies, whether the burden of proof should be the same in each case (and if it is not, why not), what limits would be placed on the right of individuals to also file suit, and what limits (if any) would apply to the government's ability to file suits on behalf of individuals.

Much more about this subject has been written. The interested reader will want to get a copy of Heartland's most recent Policy Study, reviewed in this issue of The Heartlander, titled "The States vs. the Tobacco Industry: Smoke and Assorted Mirrors," by Michael E. DeBow. Mr. Debow demolishes the legal and economic case being put forward by the state attorneys general, and points out that smokers already pay, through taxes and lost entitlement payments, more than they cost the rest of society in medical bills.

So whether or not you smoke, you have good reasons to oppose the lawsuits against tobacco companies as well as any proposed settlement. Please don't stand quietly by while any industry is taken down by a gang of self-serving lawyers, bureaucrats, and politicians. The next industry to be targeted might be the one who products you especially enjoy.

Joseph L. Bast (jbast@heartland.org) is president of The Heartland Institute.