'SMOKELESS TOBACCO' LAWYERS' NEXT TARGET

S.F. charges makers with pitching to kids

The posse that brought down Joe Camel has fixed its lawyerly sights on a
new target: the makers of snuff and chewing tobacco who allegedly pitch
their products to kids.

In a complaint filed yesterday in San Francisco Superior Court, the City
and County of San Francisco charged six makers of ``smokeless tobacco'' and
almost a dozen food store chains with unfairly concentrating on adolescents
in the sale of addictive and toxic snuff and chewing tobacco.

Among the big targets of the suit is U.S. Tobacco Inc., which dominates the
U.S. market for snuff and ``chew.'' The company, whose headquarters are in
Greenwich, Conn., sells popular snuff lines such as Skoal and Copenhagen.
Also being sued are California's largest supermarket chains, including
Safeway, Lucky Stores and Raley's.

``A new front is being opened up in the war against tobacco,'' said Deputy
City Attorney Owen Clements, whose office led three cities and 10 counties
in a suit that persuaded R.J. Reynolds to shelve its Joe Camel cartoon
advertising campaign, and won a $10 million settlement in October.

U.S. Tobacco could not be reached for comment. Spokeswomen for Safeway and
Lucky stores said they could not comment on the lawsuit because their
companies had not yet been served with legal papers.

Chewing tobacco and snuff have grown from a backwater market for tobacco
products to a $1.6 billion industry. The federal Centers for Disease
Control and Prevention reports that the overall market for ``spit tobacco''
tripled from 1972 to 1991, and that nationally one in five male high school
students use such products each month.

A University of California at San Francisco study of California high school
baseball players found that 46 percent had used the products and that 33
percent had used them more than once in the past month.

Depending on frequency and duration of use, smokeless tobacco can result in
a four-to 50-fold increase in the risk of mouth cancer.

Joining the city in the lawsuit is the Oakland-based Environmental Law
Foundation, which did not participate in the Joe Camel litigation but is
active in litigation to force compliance with Proposition 65, the state law
requiring merchants to post warnings if they sell products known to cause
cancer.

``The marketing techniques used by tobacco companies to hook kids on chew
makes the Joe Camel ad campaign look like child's play,'' said
Environmental Law Foundation President Jim Wheaton.

The foundation's lawyers are from the San Diego firm of Millberg, Weiss,
which represented the cities and counties in the Joe Camel suit.

Millberg, Weiss attorney Jim Swiderski said the basis of the lawsuit is
that the tobacco companies and their retailers are engaged in an unfair
business practice by marketing their products to children.

``Retailers are knowingly selling smokeless tobacco to underage
consumers,'' he said.

He said the plaintiffs want the smokeless tobacco products labeled with a
``clear and reasonable warning'' and for the companies to pay out all the
profits they have gained from improper sales.

Wheaton contends that makers of smokeless tobacco deliberately market
less-potent brands -- laced with fruit flavorings -- to lure young
experimenters into nicotine addiction.

The ``starter'' product sold by U.S. Tobacco is Skoal's Bandits brand,
which delivers only 7 percent of its available nicotine and is packaged in
miniature ``tea bags'' that keep the mixture in one place between the cheek
and gum.

Instructions encourage the Bandit users to spit the whole thing out after a
few minutes to avoid getting sick. ``That's teaching kids how to take
drugs,'' said Wheaton.

A cherry-flavored Long Cut brand is harder on newcomer's palates, but it
delivers 23 percent of nicotine. The top-of-the-line brand, Copenhagen,
delivers 79 percent of its nicotine content.

Critics charge that the industry itself describes the movement to more
potent forms of snuff as ``graduation,'' and they say it reflects the
process of nicotine addiction. ``As the advertisement says, `Sooner or
later, it's Copenhagen,' '' said Wheaton.

In the Joe Camel suit, San Francisco relied on Millberg, Weiss, which filed
suit without charging its clients, betting it would win a generous portion
of the final settlement.

This time, San Francisco is being represented by the city attorney's office
- -- a maneuver that could bring a larger share of an eventual settlement to
San Francisco but that will also require the city to cover its legal fees
up front.

Clements acknowledged that ``there is some risk'' in participating directly
in the lawsuit rather than relying on private law firms that would work on
contingency. Previous tobacco litigation has compensated the city for
$800,000 in attorney fees. Clements said there is no way to predict the
cost of the current suit.

The new lawsuit will require a substantial commitment of time by city
attorneys, and could be made moot by a settlement with the tobacco industry
through legislation in Congress. ``If anything like that happens, it's
likely to happen soon,'' said Clements.

)1998 San Francisco Chronicle Page A13