Big Tobacco’s Just Deserts

Amidst the multiple crises on the President’s and Congress’ plates, the fate of the so-called tobacco “industry” is small potatoes. But it’s important to me. I lost both my father (at a young age) and my mother to tobacco.

Yesterday the New York Times editorialized in favor of pending legislation that would allow the FDA to regulate tobacco products. Big tobacco is a “rogue industry,” the Times wrote, which “can’t be trusted to behave responsibly or even adhere to agreements it has signed.” So the Feds should regulate it.

While I agree with both those words and the Times’ list of sordid facts to back them up, still I wonder. I want the industry to fade into bankruptcy as quickly as possible—a result that lawsuits may well achieve if allowed to proceed unhindered. I fear that regulating tobacco will legitimize it and prolong its dreadful life yet again. Delay of just deserts has been big tobacco ’s goal for decades. Every year of delay means billions more in profit for it and decades more disease, suffering and premature death for its victims, aka “customers.”

Regulation will work only if it does not delay the industry’s demise and does no harm. In order to serve those objectives, any legislation authorizing regulation should: (1) impose severe criminal penalties for selling tobacco to minors; (2) require the industry to pay for every penny of the cost of regulating it; and (3) require every package of tobacco products to contain the following warning, inside a black border, with a skull and crossbones at the top:

“WARNING: Smoking tobacco is addictive and causes or contributes to heart disease, lung disease, cancer and death. It is the single biggest cause of preventable death in the United States. If you begin smoking you will almost certainly shorten your life and make its end nastier. Tobacco ads for decades lied about these facts, but hundreds of scientific studies have proved them.”

Unless the legislation meets these conditions, I will be just as skeptical of it as I was of the tobacco settlement, which already has given this awful “industry” another six years of undeserved life. Here, in my previously unpublished 2003 piece, I explain why:

The Tobacco Deal (2003): Why Settle After Stalingrad?

In winter 1942, Adolph Hitler was flush with success. His armies had overrun continental Europe. He had treacherously turned on Russia and had battled his way to the Volga. Moscow was within his reach.

Yet the Russians, with legendary courage and unprecedented suffering, turned the Nazis back at Stalingrad. Never before had Nazi armies suffered a major defeat; this was the first. They would enjoy success in battle later, but Stalingrad was the turning point of the war. Hitler’s generals knew this. About eighteen months later, they tried to kill him, with the apparent intention of consolidating their position and suing for peace.

What would have happened had they succeeded? Would the Allies, weary of war, have compromised? Would they have given the Nazis France, Italy, Belgium, and large parts of Russia just to have peace? I hope not. Our World War II generation—perhaps the most courageous in our nation’s history—could stomach only one answer to demonstrated evil: unconditional surrender.

I don’t compare big tobacco to the Nazis, although it used the very same “big lie” techniques. What the Nazis did was of incomparably greater scope, scale and brutality. But evil is evil. And I can’t think of any better word to describe knowingly promoting and selling, for profit, products that cause addiction, suffering, disease and death. Were the tobacco industry not protected by virtue of its unique history, we would call it by another name: drug pushing. Targeting children just adds insult to injury. (I leave aside the claim that tobacco companies targeted minorities, as well as kids.)

And so the memory of Stalingrad came to me while thinking about the proposed tobacco deal. Until recently, the tobacco firms’ battalions of lawyers had been flush with victory; they had never suffered a defeat. The industry had never paid a penny in damages to any victim of its products. But in 1996 it lost its first verdict, $750,000, at the hands of a Florida lawyer named Norwood “Woody” Weiner.

At about the same time, evidence of the industry’s treachery, in the form of internal memos, began emerging from courtrooms and congressional hearings. The stone wall that it had so carefully built and maintained for over forty years—to hide the results of its secret research and product plans—began to erode.

Unlike Hitler, the heads of tobacco firms are not madmen. They were and are rational business people, just seeking profit. They saw their Stalingrad and now want peace. The result, called the Tobacco Settlement, is now working its way through Congress.

Yet anyone who follows the issue knows, just as did Hitler’s generals in 1943, and just as do the tobacco CEOs today, that the end for them is in sight. The wheels of justice may grind slowly, but they are gaining momentum. States have won substantial settlements on behalf of their citizens. Lawyers who once shunned tobacco cases are seeking them in droves. Incriminating documents are emerging from their shroud of secrecy in corporate files and sealed court records. In another five to ten years, this industry, whose products are the leading cause of preventable death today, will vanish under an avalanche of compensatory and punitive damage awards. It will, that is, if Congress doesn’t meddle.

Unlike the Second World War, this victory over evil will cost neither blood nor tears. It will require only patience, plus the sweat of lawyers acting in their own economic interest. And the industry’s demise will be lawful and in full accord with due process. The tobacco firms know this; that is why they are reportedly willing to pay over half a trillion dollars—that’s $500,000,000,000, nearly one-eighth of the national debt!—for only partial statutory relief from legal liability for their wrongs.

Why are our elected representatives willing to give them that relief? Do they think America so needs their tainted money? Maybe they have forgotten the central message of the last generation, for which so many paid in blood: never compromise with evil. Or maybe they simply don’t understand the practical reality: the quickest way rid this country of the scourge of tobacco is to let the courts continue to do their jobs.

And so I hope and pray there will be no tobacco settlement. I look forward to reading the Wall Street Journal as the verdicts roll in and, one by one, the tobacco firms seek protection in bankruptcy. As each bankruptcy is filed, I’ll lift a glass in toast, and I’ll light a candle for all the hapless victims of tobacco addiction. I’ll think about my mother, a rational and highly intelligent woman, who, in her seventies and suffering from emphysema, still snuck smokes in the toilet. And I’ll remember the phalanx of tobacco CEOs, assembled in Congress, each testifying with a bald “No!” when asked whether he believed that nicotine is addictive.

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