Cutting A Deal On Tobacco

Sun Journal

Negotiation: An Expert Discusses What Is Possible In A Settlement With The Cigarette Industry.

April 25, 1997|By M. WILLIAM SALGANIK

The tobacco industry and its opponents are trying to negotiate an agreement that would give cigarette manufacturers protection from court suits in exchange for concessions from the industry: Cigarette manufacturers would limit their advertising and pay $300 billion over 25 years to injured smokers and survivors of those who died.

Congressional action would be needed to give the industry protection from suits claiming damage from smoking and from suits by states seeking reimbursement for smoking-related medical expenses.

At the table for the talks were the top executives of the two largest American tobacco companies, Philip Morris and RJR Nabisco; some of the state attorneys general and plaintiffs' lawyers pursuing suits against the industry; and Matthew Myers, executive vice president of the Campaign for Tobacco-Free Kids. They have scheduled another session for next week.

An interested observer is Richard Kluger, author of "Ashes to Ashes: America's Hundred-Year Cigarette War, the Public Health, and the Unabashed Triumph of Philip Morris." At the end of the book, published in August, he discusses a deal somewhat like the one being discussed now.

He was interviewed by Sun staff writer M. William Salganik.

Why would cigarette manufacturers want a deal that will cost them $300 billion?

There is a critical mass of evidence and political activity and public opinion. If they don't come to the bargaining table in good faith, they are going to be dealt a severe blow by the public and the Congress.

In the three years since the Clinton administration unleashed the Food and Drug Administration, the evidence has been piling up. To continue to deny the evidence would undercut their entire legal position and whatever moral position they have.

Why would anti-tobacco activists want a deal that would protect the industry from liability suits?

For one thing, the industry has a great deal of money to spend to protect itself. The activists have persuaded themselves and persuaded the public that the industry has been hiding deep, dark secrets, and that simply is not true.

The Supreme Court has ruled that the public knew about the dangers of smoking.

The only real case that could be made is in regard to the addictive nature of smoking. But tens of millions of people have broken the addiction -- the legal case is not easy.

The key to a settlement is that the product has to be made less lethal. But I haven't heard in this debate that representatives of the public health community are calling for this to be a part of the deal.

Is regulation of nicotine and tar likely to be part of any agreement?

That is the key from the tobacco industry's point of view. If they make the product too weak, it will lose its appeal.

The industry doesn't want to be instructed as to limits on the active ingredients in cigarettes.

They know, and everybody knows, that nicotine is the addictive agent in tobacco -- there are hundreds of studies on that. The less nicotine, the less addictive it is. It would make it easier for smokers to escape the habit.

In the European Union, there are already regulations making cigarettes less lethal.

If that's not part of the deal here, there shouldn't be a deal. I wouldn't sign on for a deal unless the FDA explicitly has the power to regulate the content of the tobacco. Each side has to have a bottom line, and I would think that should be the bottom line for the activists.

If cigarettes are harmful and addictive, why not ban them altogether?

Because it can't be banned. It would become a huge black-market product. It became a major consumer product before the evidence was in on the health effects. If you tried to ban it today, a lot of people would say, "I can't live without it."

But a lot of smokers would be happy if you said, "We're going to make it weaker." The industry might not mind that much, but they're afraid that once the FDA began regulating nicotine, there's no telling how low they'd go.

Is the history of the industry one of firm opposition to any change or one of making shrewd deals at crucial times?

I don't know that they have made shrewd deals, but they have managed to roll with the punch in a way that they come out ahead.

When medical evidence first began mounting on the health effects, they put filters on, and they sold a lot more cigarettes.

The case of the warning labels was more obvious. The imposition of labels [by Congress in 1965] essentially protected the industry from liability suits [by allowing them to claim smokers were aware of the hazard].

But sometimes their cleverness undoes them. In 1984, they defeated an effort to include the addictive nature of smoking in the warning labels, and this has opened up an area of litigation.

Is it fair to characterize the activists as "anti-smoking" or is it fairer to describe them, as you do in your book, as "favoring smoking limitation?"

Are they prohibitionists?

There is some element of that, of sermonizing and moralizing, such as former Surgeon General Everett Koop.

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