Warning: cigarette labels are hazardous

October 24, 1994|By Elizabeth M. Whelan

THE DEBATE about government's legitimate role, if any, in regulating the tobacco industry is virtually deafening.

Should cigarettes be put under the Food and Drug Administration's jurisdiction?

Should we set limits on nicotine? Raise taxes to discourage smoking? Ban advertising?

But none of this may be necessary if the government will only undo its fatal mistake of 1965 and repeal the mandated warning labels on cigarette packages and advertising. This would threaten the tobacco industry more than any punitive regulation Congress might contemplate now or in the future.

The labels have done nothing to discourage smoking, which has declined largely because it has become socially unacceptable. Removal of the labels -- the four rotating warnings about the health effects of cigarettes -- could have immediate health benefits.

The warnings provide legal protection for the industry, minimizing the threat of successful litigation. They relieve the industry of the burden of giving very specific, detailed information on health risks -- the kind of fine print (including worse-case scenarios) that pharmaceutical companies routinely provide with prescription drugs.

During the mid-1960s, when the health hazards of smoking finally became undeniable to policy makers -- they were obvious to the scientific community by the late 1930s -- health activists and the tobacco industry lobbied Congress for labels.

Health advocates thought they were doing good. The tobacco industry sought to survive.

As more and more states proposed different warning statements, the potential for chaos in interstate commerce was a looming nightmare. The companies reasoned that it would be better to have just one standard label.

They had another motive, too. While the federal label blocked the states from imposing any other warnings, the industry claimed that the label also forbade tobacco companies to be more specific about the dangers of smoking.

The industry, which to this day has never paid a cent in damages in cases brought by smokers, argued in its non-sequitur manner that cigarettes were not dangerous, but that if they were, the government had pre-empted the industry's responsibility to warn consumers, so don't blame the industry for not providing ample warnings.

The Supreme Court largely agreed, in 1992, that the label pre-empted lawsuits, although it left a window open for litigation if plaintiffs could prove that tobacco executives conspired to withhold facts about health hazards.

Thus, tobacco companies enjoy a Teflon-like protection from lawsuits, a status not afforded any other industry. They regularly deny dangers, in formal statements (recently before Congress) and in advertising.

The threat of litigation is a powerful incentive for any industry to keep its product safe and to warn specifically of hazards. But cigarette manufacturers, legally unaccountable, have no incentive whatever to be honest about the consequences of smoking, and apparently have unlimited freedom to distort and misrepresent.

If the labels were repealed, tobacco products might finally be treated the way all other products are under the nation's strict liability codes.

If Congress took the label off, wouldn't the industry simply restore it? Probably not.

Liability laws demand that warnings be complete and specific, not limited and vague.

Sometimes even specific is not specific enough, as in the case of Ortho Pharmaceutical, which warned that its oral contraceptive might cause blood clotting, which can be fatal, but was held liable because it failed to mention the risk of stroke.

"Common knowledge of danger" is not a sufficient defense for any other product, particularly if the manufacturer communicates contrary message -- that its product is safe, fun, sophisticated, sexy and pleasure-giving.

Caveat emptor -- let the buyer beware -- does not have much status in our courts. They have long imposed stringent standards on manufacturers, requiring that warnings disclose the full extent and exact nature of risk present in products.

Even cigarette lighters have more precise warnings than do cigarettes: references to butane gas, flammability and hazards.

Most Americans may be generally aware that smoking is dangerous, but how many know the precise level of consumption that poses a threat (risks increase with four cigarettes a day) or the reality that smoking is a primary cause of cataracts, hearing loss, osteoporosis, cervical cancer and male impotence?

There would be an increased likelihood that the industry would be held liable for damages -- not necessarily for lung cancer or other chronic diseases that developed in the past 30 years while the label was on, but for acute episodes that occurred on the first label-free day: death and injury from fires, burns and explosions.

Of course, some juries might still conclude that the smoker should assume all or most of the responsibility for the consequences of a habit widely accepted as dangerous.

But with labels gone, the odds might shift in favor of the smoker.

The industry would most likely voluntarily withdraw all advertising, for it would be incompatible with any defense in court.

And to fully protect themselves, the companies would either devise a very detailed label or, unlikely as it seems, require a signed, informed-consent form before purchase -- one that clearly spelled out the real possibility of addiction, among other things.

Cigarettes, the leading cause of preventable death, might well become anachronistic if the playing field were leveled and manufacturers faced liability for damages.

We don't need more government meddling. We do need to let the free market work.

Remove the warning label, now.

Elizabeth M. Whelan is president of the American Council on Science and Health, a policy-analysis organization.

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