Tobacco road ahead.

NEW YORK, APRIL 10

One problem with the tobacco fight is that to tackle it objectively ends you up accused of indifference to people dying of lung cancer. One should attempt to fight free of the stigma long enough to ask the simple question: Should tobacco companies welcome suicide? The answer is obvious.

Now with the declaration by the head of RJR Nabisco that his company was going to pull out of the pending bill fathered by Sen. John McCain, we are required to look into the resources of the contending parties, beginning with the great anti-tobacco public lobby.

Now I know a lot of these folk, and in a sense am myself one of them. But there is the other popular lobby from which not much is heard, yet I'd suspect they vote very emphatically with their feet. They are the smoking lobby -- the people who smoke cigarettes, about 45 million of them. If you pit the political energy of the anti-tobacco people against that of the smokers, you would find more heat emanating from the former, but more determination from the latter. The reason for this is simply that anyone who smokes has discounted the risk of cancer and doesn't really want to be deprived of cigarettes by pricing policies directed by Congress.

What Mr. Steven Goldstone of RJR is saying (and his declaration was instantly endorsed by the other major tobacco players) is: Okay, Sen. McCain: you and Congress use the instruments at your disposal. We will fight with ours.

What Congress can do is something a little less than merely terminate teenage smoking. The Senate committee had come up with an interesting idea. If by Year 3 the incidence of cigarette smoking hasn't decreased, why then certain afflictions on the tobacco companies are activated. The response of the tobacco people bears heavily on the Fourteenth Amendment, which says that nobody can be punished without due process of law. What is the liability of RJR Nabisco if Johnny begins to smoke at age 15? Can anybody prove that RJR seduced Johnny? There are laws against Johnny's smoking, or at least against his buying cigarettes. Enforce those laws, and what do you get? I was a juvenile-delinquent smoker and feared my parents' detection much more than the policeman's -- are they to be marshaled to the cause of prevention? Nobody knows for sure, but everybody knows that existing laws against selling cigarettes to minors (and for that matter, selling beer) are scantly noticed, let alone enforced. What's invited is years of court fighting, which means no tobacco-road drought for legislators hungry to win a victory popular with the anti-smoke lobby.

Where the tough guys have the definitive weapon is of course on the matter of drug policy. Here you have a straight taxonomic question. Is caffeine or is it not a drug? Answer: It is. Question: Do we therefore have a right to regulate its consumption via the Food and Drug Administration. Technically yes, and that right would presumably extend to the regulation of Coca-Cola and coffee.

What the tobacco people reasonably fear most is litigation. In the current mood, it is a plaintiff's world. A while ago a jury voted a two-million-dollar-plus award to Consumer A against McDonald's for serving coffee too hot. Any jury willing to do that would presumably be willing to vote one thousand times as much to Consumer B against the tobacco companies for damaging not the skin temporarily, but the lungs permanently. The tobacco companies were most eager, in their comprehensive settlement, to focus on limited liability. The trial lawyers, who try to match tobacco companies dollar for dollar in contributions to Congress, want none of it, and Sen. McCain's bill does not offer the ceilings on liability suits envisioned by the covenant last June.

The tobacco people's heaviest weapon is of course the smokers. The asbestos business was killed off a few years ago and most people simply yawned -- if they could not get asbestos, they would get some other fire-resistant substance. But everybody who does not smoke or who gave up smoking knows somebody who still does -- might even be married to him/her -- and the desire to do something about tobacco falls a little short of pricing it out of reach of your neighbor, or declaring it an illegal drug. So what are the tobacco companies left with? A lot of money to wage a public fight, plus the general impression that it is reasonable for them to do so. They aren't ready to call for Dr. Kevorkian.