TOBACCO TALK

THE chief executives of the major tobacco companies told Congress Thursday
that they could not "agree," as one unfortunately put it, to comprehensive
tobacco legislation that did not include limits on their future liability.
It was an odd and anachronistic choice of words in testimony otherwise
carefully crafted by the companies' PR people to sound somewhere between
virtuous and contrite.

The implication was that this was still to be regarded as a deal instead of
an act of Congress and an expression of national policy. But the deal stage
has been left behind, and the Founders left the tobacco industry out of the
Constitution. The companies may once have had the political power to block
what they continue to resist; they don't now. "We don't need the tobacco
industry's blessing" to pass a bill, Rep. Henry Waxman, D-L.A., said, and
he's right.

The industry looks upon limited immunity as the quid pro quo for all the
rest that Is likely to be in the bill - the money it would have to pay, the
marketing and other regulations to which it would become subject. The
executives made no secret of that Thursday. Nick Brookes, chairman and
chief executive officer of Brown & Williamson Tobacco Corp., said in
prepared testimony that the likely effect of any legislation would be
declining sales, and "as declining sales are spread over our fixed costs,
our profits must fall. This is . . . the reason we cannot agree to any
legislation that does not include the limited, common-sense civil liability
protections" in the deal the companies struck last summer with the state
attorneys general who were suing them. "We cannot agree to give up our
constitutional rights to market our products to adults and consent to
crushing annual payments and ... penalties, without receiving some
certainty as to the future of our business. To do so would risk destroying
not just Brown & Williamson but an entire industry."

But saving the Industry is not what Congress should do first. First it
should pass legislation to retard smoking, particularly among young people
not yet hooked. The right way is to tax up the price, tighten regulations
and offer the addicted greater help to quit. Then Is time enough to tidy
up, figure out how to split up the money raised and what protections if any
to afford the industry. The industry's health and the public's should be
separate calculations.

The executives said Thursday that the proposed limits on liability were not
that great. If that were so, they would not be fighting so hard for them.
This is an industry that itself has begun to admit after years of denying
that It produces a lethal product. It is in retreat and wants a bill that
would let it regain its balance. Congress should keep it on its heels.