NO WAY: Why not punish the government instead?

By GERALD NACHMAN

IN THE NATION'S holy war on tobacco, amid all the selfrighteous
chestthumping, false assumptions and sentimental handwringing, it's

hard to know where to begin dismantling the huge nest of quasifacts and
half truths.

So let's start with the devilmademedoit notion that the tobacco
companies have lied to the American people that cigarettes are not
addictive. They haven't lied at all. To the contrary cigarette makers
have gone well beyond any other business to notify potential customers in
ads and on billboards that their product may "prove harmful." If only the
makers of pulltop soda cans were as truthful.

Claiming nobody knew cigarettes were so dangerous is like saying that,
after running over someone while drunk, you were unaware too much alcohol
might lessen your reflexes. Also, if advertising seduces people into
smoking then why don't these same people heed the betternotsmoke
warning in these very ads?

What cigarette executives have done is simply defended their product, as
one would expect them to do. And even if cigarette makers have "lied,"
don't most manufacturers lie, a little or a lot, in advertising and
publicity by making absurd or exaggerated claims and downplaying or
ignoring their product's negative sides?

At the very worst, the cigarette villains who told Congress they "did
not believe" smoking was addictive are guilty of perjury. But "not
believing" and lying aren't the same thing. Maybe the men were in denial
or duping themselves. Maybe they didn't much care either way in which
case they're only guilty of amorality or maybe they truly feel smoking is
not addicting, only its abuse.

And what does "addictive" mean, anyway? One man's Marlboro is another
man's poison. There arelevels of addiction. Most people who smoke don't
believe it will truly kill them and very often they are right.

People who smokeall their lives die of illnesses unrelated to smoking.
They're lucky but they're willing to make that dangerous bargain despite
all scientific studies, emotional pleading and noble antismoking
campaigns to the contrary.

The antismoking crusaders' weakcase is their most heartfelt and
desperate hiding behind poor beleaguered children of America who, so
they claim, are being abducted by a hideous demon from Madison Avenue and
forced to smoke beyond their puny powers to resist. Ever try to persuade
a teenager to do anything?

This contingent claims that ads like those featuring Joe Camel somehow
snare our innocent youth into smoking. This assumes that teen agers are
easily gulled into smoking by a cartoon character, when, of course, all
sorts of products feature cartoon figures that teenagers and adults
blithely ignore.

In fact, this famously cynical generation of young people is highly
unlikely to follow the pied piper of Camel.

Long before Joe Camel, Kools featured a winsome and presumably equally
wicked penguin called Willie who apparently also led hundreds of
thousands to their deaths.

TEENAGERS, like all smokers of all ages, smoke be cause they like it.
Imagine that. They enjoy the taste, the kick or whatever it is that makes
people who smoke feel so cool, or Kool And you know what? Smoking does
look cool.

Even I, who took a puff at 18 and decided against the idea, will concede
that obvious truth. So the problem is not breaking kids of the cigarette
habit but, rather, of the habit of wanting to look cool. Maybe we first
need to outlaw the desire to look cool.

A class action suit should also be filed on behalf of all the people who
were led to believe that smoking would improve their sex life that guys
would be surrounded by pretty girls and get lucky if, say, they smoked
Luckys.

If legislators feel an allout attack on a cartoon character will change
people's minds, they're more patronizing toward (and naive about) the
public than I thought. Joe Camel has become an easy target because the
companies themselves have proved such elusive ones. Congress may as well
ban Betty Crocker to discourage fat people from consuming too many
blueberry muffins.

And why not file a classaction suit against the cigarette ad agencies
for equal duplicity, or go after all the publishers who printed the ads
and broadcasters who aired them? Or even the people who make cigarette
holders, ashtrays and vending machnes?

Behnd much of this antismoking jihad is the heartrending theory that
people who smoke ar ehopeless patsiers, addicted for the life when, in
fact, millions of people quit every day and have for centuries.

All sorts of food, drinks and drugs give pleasure that are not
addictive but tough to give up chocolate, say, to name my own narcotic
of choice.

It requires a certain amount of will power to quit smoking, to be sure,
but why should people be rewarded for failing to stop smoking when they
knew as everybody in the civilized world now knows from the age of
10that smoking is dangerous? To steal the NRA's favorite line:
Cigarettes don't kill people. People who smoke cigarettes kill people
themselves.

Suddenly we're supposed to be stunned to learn that cigarettes are "a
dehvery device for nicotine." I thought that was the whole idea, as
spelled out and illustrated in a million ads. What do you know tobacco
contains nicotine (and tars, too, I'll bet!) in fact, the government is
the hypocritical party here, and far more culpable than the cigarette
companies, dupes of a kind themselves, because the Food and Drug
Administration moved so slowly and themselves ignored obvious evidence
that it now cites so grandly as "clear and convincing."

The FDA is trying to cover its own rear for not outlawing tobacco
decades ago when nine doctors out of 10 knew it was harmful. If tobacco
does indeed kill people, and is a drug, why didn't the FDA say;. so 40
years ago and take it off the market then? I figured it was a bad idea at
12, in 1950, when I gave my chainsmoking mother a copy of "How to Stop
Smoking in 30 Days for her birthday. It didn't work; she died of lung
cancer 40 years later but not from reading too many L&M advertisements.

Why are cigarette companies, which have been allowed to operate for

decades under strict governmental regulations, now being punished for
complying with these very laws? If the laws were too lenient, that's the
government's fault. So shouldn't people be suing the FDA rather than the
tobacco companies? Why make tobacco companies scapegoats for lax health
laws and human folly? Instead, the FDA is scrambling aboard the public
opinion bandwagon in a belated effort to look good, many needless deaths
after the fact.

Then there is the highly suspect argument that socalled "secondhand
smoke" harms nonsmokers. How is this dubious theory even provable? How
can you measure the amount of cigarette vapors inhaled by anyone, and how
can it be determined how much it takes to harm someone in an atmosphere
already tainted with exhaust fumes, industrial smoke, DDT and God knows
what other pollutants?

Even in the Age of Victimizafion, it strains credulity to make the crazy
leap in logic that people who kill themselves by smoking were bumped off
by the guy who made the gun.

Nachman is a San Franciscobased freelance writer and former
theater critic and entertainment writer at the San Francisco Chronicle.
He has recently completed a book on the golden age of radio

YOU BET

If Big Tobacco doesn't deserve it, who does?

By ALAN B. MORRISON

ONE OF THE key elements of the seriously flawed proposal for a
tobacco deal is the

elimination of the right of any victim of tobacco to sue for punitive
damages.

When the deal was announced s last month, supporters claimed that

$60 billion would be for past punitive damages, but the agreement it self
makes no mention of punitives and in fact specifies that every dollar
paid out would be fully tax deductible.

The pending claims for punitive damages in the classaction cases may
have caused the industry' to up the ante, but the deal has no punitive
damages payments. Of all the industries to let off the punitives hook,
tobacco is the least deserveing. Let's look briefly at just some of the
facts that victims' lawyers could reasonably expect to prove on the issue
of punitive damages. The industry kills more than 400,000 people each
year.

To replace those customers, the industry seduces 3,000 children into
smoking each day, largely through advertising that is directed at
impressionable youth who, because they cannot fully appreciate the
addictive qualities of tobacco, are legally prohibited from buying t~
bacco products.

If the industry's practices do not constitute aiding and abetting
illegal sales of tobacco they come close.

For decades, cigarette makers routinely have lied to the American public
about the dangers of tobacco and they have withheld millions of pages of
evidence on that point. They have set up elaborate schemes using
purported research institutes and funneling documents through lawyers to
claim privileges that have shielded from public view the extent and depth
of the industry's knowledge.

Every time Congress or a federal agency has put in even the most modest
form of controls, the industry has used every possible loophole to end
run the process And when individuals have sued the companies have
unleashed a barrage of lawyers with unlimited budgets and the goahead to
delve into the most personal parts of the victims' lives to avoid
liability.

As a result, the industry never has paid a penny in damages. Although
one adverse verdict is still on appeal, even that would not begin to
punish the industry for all its wrongdoing, but would simply take a tiny
slice out of its bulging profits.

Given that record, one wonders what the industry' gave up to gain relief
from all liability for punitive damages.

First, it has refused to give an inch on disclosure of the documents for
which it consistently has made exaggerated claims of attorneyclient,
work product, trade secret and other privileges.

And with the lawsuits by the attorneys general and the class actions out
of the way, the incentive to litigate the disclosure issues and the skill
to fight these unjustified claims will both be greatly diminished.

The industry has promised to stop aggressively marketing cigarettes and
smokeless products to kids and to undertake other measures designed to
reduce the harm from tobacco.

But it has not promised to stop killing people by taking cigarettes off
the market, although if the proposed settlement went through, fewer
Americans probably would smoke. Even then, the industry simply would
concentrate its assault abroad, where 92 percent of all cigarettes are
sold.

The industry has agreed to cut down on its advertising and pro (thereby
saving billions of dollars in costs a year), but it will find new ways to
sell cigarettes, including to minors. And it has promised to pay billions
of dollars, but precisely how the money will be used has not been
decided.

The only certainty is that the companies insist that all of the payments
be tax deductible, which means the taxpayer will absorb about 40 percent
of the cost of any deal.

Thus, in exchange for doing little more than what the law already
requires, or at least should require, the industry wants to eliminate
punitive damages and we suspect, seek immunity or pardons for criminal
liabIlity for its top officers as well.

How could state attorneys general, who are sworn to uphold the law, go
along with that?

Should anyone really fear a threat from the industry that, if punitive
damages are not eliminated, will continue its old ways, continue to kill
people and direct its advertising at children?

And if it carried out that threat, does the industry really think it
still controls Congress the way it once did, or that it is invulnerable
to lawsuits by its victims?

The notion of immunizing the tobacco industry from punitive damages is
terrifying enough on its own, but consider the message that would be sent
to everyone else. If tobacco doesn't have to pay, who should?

Even for those who believe the punitive damages should be limited to the
bully who physically assaults a victim unable to defend himself, doesn't
that perfectly describe what the tobacco industry has done to millions of
Americans in the past 50 years?

Put another way, Big Tobacco has killed more, lied more and profited
more than any other industry.

If that industry is relieved of liability for punitive damages, what
other industry will not line up to obtain similar relief from Congress?

If the rule of law is to continue to have meaning, the state attorneys
general and the public health community can send only one sensible
message to Congress and the tobacco industry: Don't even think about
eliminating liability for punitive damages.

Morrison is an attorney for Public Citizen Litigation
Group