SMOKE GETS IN YOUR EYES

A legal drug that's lethal, but can't be banned? Sure. Welcome to the weird
world of tobacco.

July 31-- Imagine that millions of Americans are addicted to a lethal drug.
Imagine that the Food and Drug Administration has repeatedly ducked its
responsibility by refusing to regulate that drug. And imagine that when the
FDA finally does its duty, an appeals court decides that it cannot do so,
that the drug is so dangerous that if the FDA regulated it, it would have
to be banned.

Welcome to the topsy-turvy world of tobacco, where nothing much makes sense
except the vast profits, where tobacco company executives slip-slide along
the continuum from aggrieved innocence to heartfelt regret without breaking
a sweat, and where the only people who seem to be able to shoot straight
are the jurors who decide the ubiquitous lawsuits.

The most recent panel to do the right thing handed down a judgment of $145
billion on behalf of sick smokers in the state of Florida, the largest jury
damage award in history. Lawyers for the tobacco companies thundered that
the award would bankrupt them, yet the stock market scarcely shuddered.
Experts said the amount would likely be reduced when cooler judicial heads
prevailed.

The jurors who gave up two years of their lives, listened to endless
witnesses and yet were able to hammer the tobacco companies after
deliberating only a few hours could be forgiven if they felt they'd fallen
down Alice's rabbit hole into Wonderland, where the Red Queen cries "Off
with their heads" but no one is ever executed. Al Gore, for instance,
inspired by the death of his own sister from lung cancer, insisted not long
ago that he will do everything he can to keep cigarettes out of the hands
of children. But he says he would never outlaw cigarettes because millions
of people smoke. Here is a question: how many users mandate legality? What
about the estimated 3.6 million chronic cocaine users, or the 2.4 million
people who admit to shooting or snorting heroin?

I can almost feel all the smokers out there, tired of standing outside
their office buildings puffing in the rain when once they could sit
comfortably at their desks, jumping up and down and yelling, "Tobacco is
different from illicit drugs!" Because it is legal? Now, there's a circular
argument. A hundred years ago the sale of cigarettes was against the law in
14 states. The Supreme Court, which ruled earlier this year that the FDA
did not have the power to regulate tobacco, upheld a Tennessee law
forbidding the sale of cigarettes in 1900. The justices agreed with a state
court that had concluded, "They possess no virtue but are inherently bad
and bad only." At the time, Coca-Cola still contained cocaine and heroin
was in cough syrups.

Official tobacco apologists spent years insisting their product did not
cause cancer, then that it was not addictive.

Since then the tables have turned. Tobacco companies spread political
contributions around like weed killer on the lawn in summer, although
they've passed from their bipartisan period into an era when they support
largely complicit Republicans, who like free enterprise (and soft money)
more than they hate emphysema. (George W. Bush responded to a question
about the recent megasettlement by bemoaning a litigious nation.)
Responsibility-minded Americans accept the argument that individuals have
the right to poison themselves, although studies showing that the vast
majority of smokers began as minors raise questions about informed consent.
Official tobacco apologists spent years insisting their product did not
cause cancer, then that it was not addictive. Now they've done a 180,
arguing that since there is no such thing as a safe cigarette, a government
agency like the FDA, created to regulate the safety of products, cannot
touch them.

If this sounds like having it both ways, that's because it is. Philip
Morris masquerades as a corporate Robin Hood by making large contributions
to nonprofit organizations, soup kitchens, ballet companies, museums and
shelters, being a good citizen with the profits of a product that kills
400,000 people a year. And magazines, including this one, run articles
about the dangers of cigarettes in the same issues that advertise them.

Even tobacco foes have fudged. When Dr. David Kessler ran the FDA, he
publicly concluded what everyone already knew: that cigarettes are nothing
more than a primitive delivery device for nicotine, a dangerous and
addictive drug. But the agency never took the obvious next step. The Food,
Drug, and Cosmetic Act forbids the sale of any drug that is not safe and
effective, and part of the FDA's mandate is to regulate devices. Cigarettes
are a device. The drug they deliver is patently unsafe. Ergo, cigarettes
should be banned.

But if cigarettes were outlawed, what to do with all those tobacco junkies?

That's not going to happen in our lifetime, which is why even a more
aggressive FDA refused to take this to the limit. Too many tobacco farmers,
too many tobacco addicts; a right to a livelihood, a right to a lifestyle.
(Both of these arguments hold for legalizing illicit drugs as well, but
never mind.) "Prohibition" is a dirty word in America. But tobacco can in
no way be compared to alcohol. Many people can and do drink safely and in
moderation, while it is impossible to smoke without some pernicious health
effects, and nearly all smokers can be described as addicts. But if
cigarettes were outlawed, what to do with all those tobacco junkies?
Nicotine clinics providing the patch, strong coffee and hypnotherapy?

Public-service announcements, catchy commercials for kids, settlements with
the states to recover health-care costs: the tobacco companies, which once
swore they were doing nothing wrong, are now willing to lose some
ideological battles to win the war of the profit margin. One Philip Morris
executive appearing at a recent conference even told Kessler, whose efforts
to restrict sales and advertising aimed at children spawned a battle royal
of billable hours, that he welcomed "serious regulation of the tobacco
industry at the federal level." Now they tell us. Why shouldn't the
Marlboro men play the angles? The public and the pols have provided them
with so many angles to play. Here is the bottom line: cigarettes are the
only legal product that, when used as directed, cause death. The rest is
just a puppet show in the oncology wing.