SMOKE GETS IN THEIR AYES

THE Senate just couldn't handle the tobacco issue.

If senators just could have focused on the original goals of Sen. John
McCain's tobacco bill -- curbing teen smoking, regulating nicotine as a
drug, ending the flood of costly lawsuits and penalizing the tobacco
industry for years of deadly lies -- they might have been able to pass it.
Instead, they focused on the money, the $516 billion the bill was expected
to cost the tobacco industry over 25 years.

The Democrats, following President Clinton's lead, couldn't resist the urge
to start spending that money on social programs. The Republicans couldn't
resist the urge to give it away as a tax cut. The bickering over money
played right into the hands of the tobacco companies, which spent $40
million on ads to convince the American people that the Senate had
abandoned the original debate on smoking and health, which it had.

After the death of the bill due to procedural causes, Republicans and
Democrats in the House and the Senate were vowing on Thursday to resurrect
the bill in some form. But it is unlikely that any substantive tobacco
legislation will come out of Congress this year. And while that is
disappointing, it is not the worst that could have happened.

We have said from the beginning that a bad tobacco bill would be worse than
no tobacco bill at all, and this one, in its final form, was bad indeed. It
would have penalized tobacco companies billions of dollars a year and
forced on them potentially unconstitutional restrictions on advertising
without offering them in return any protection from future liability suits.
While we don't object to making the industry pay for its sins, we believe
that some limit on liability for past acts is justified.

The bill also threw in some extraneous provisions we didn't like, such as a
ban on the use of federal money for needle exchanges.

Fortunately, the defeat of the McCain bill does not mean the tobacco
companies are off the hook. The battle simply moves back to the courts and
to state and local governments, where the anti-tobacco forces have been
making steady progress.

A year ago, the tobacco companies agreed to a $368 billion settlement with
state attorneys general over the cost of treating sick smokers. The McCain
bill was supposed to ratify that agreement. But without congressional
approval, the industry is forced to settle with each state, and the climate
in the courts grows less hospitable to tobacco all the time. Where once the
industry was able to rebuff every claim against it, in the past year it has
agreed to pay out billions. Already the companies have agreed to pay $36
billion to settle four state lawsuits. Several others, including
California's, are scheduled to go to trial in the next few months.

In addition, thanks to the disclosure of secret industry documents, juries
are now awarding damages to smokers who claim they were addicted to tobacco
by unscrupulous industry practices. There are nearly 1,000 individual and
class-action suits pending, including a major suit brought by Blue Cross
and Blue Shield.

As for government regulation of nicotine, that, too, will be decided by the
courts. The federal 4th Circuit Court of Appeals is considering whether the
Food and Drug Administration has the power to regulate the nicotine in
tobacco or even ban it.

Meanwhile, the court of public opinion continues to chip away at the
privileges of smokers. City councils and state legislatures across the
country are passing ever tougher restrictions on public smoking and on the
sale of tobacco products to minors.

This week, the cigarette companies are celebrating the defeat of the McCain
bill. Let them savor their victory, because there are major defeats ahead.

Checked-by: (Joel W. Johnson)