Ashes to Ashes: America's Hundred-Year Cigarette War, the Public Health, and the Unabashed Triumph of Philip Morris.
This project began with an extraordinary invitation from the secretive Philip Morris company, the nation's largest tobacco enterprise, to interview its senior executives. Thanks to this entree, Kluger brings a novel ingredient to his account; no other author has gained such access.
Philip Morris executives yearned to be properly understood and they evidently had faith that the unpremeditated approach carefully constructed by Kluger would not jeopardize their fortunes. So persistent was the author in suspending moral judgement that the anti-smoking activists he encountered during his research thought he had "gone native" after sessions in the Philip Morris boardroom.
The faith put in Kluger by the tobacco executives was, in the end, not misplaced. He presents evidence that "strongly suggests [the companies] well understood the health charges against them and had by utterance and action tried for forty years to blind the public to the severity of the risks of smoking," but the author believes the companies should not be "dealt with unkindly," or punished in a way that would stem the industry's flow of riches. In his view, the fault lies with a failure to regulate a product that is clearly harmful and addictive. Cigarette makers, in his view, have behaved merely according to commercial expediency--finding the best way to make the most profit under the law. As for the tobacco chiefs' statements before Congress that they believed nicotine was not addictive--that is "slippery conduct," according to Kluger, not perjury.
There is little to be gained, perhaps nothing, Kluger argues, by "hand-wringing" and "demonizing" and pursuing the tobacco companies through the courts--because they always win and will probably survive the current, and most challenging, spate of class actions and state lawsuits. Society must now "dance with the devil" in constructing a compromise, he says.
Kluger's appeasing solution--laid out in the book and in a recent cover story in The New York Times Magazine--is a blanket, and retroactive, exemption by Congress from all personal injury claims by smokers against the cigarette manufacturers. In return, the companies would submit to FDA oversight on manufacture and packaging, including limits on hazardous ingredients and efforts to make cigarettes less alluring to youth. In addition, federal cigarette taxes would be doubled, and cigarette packs would have to state explicitly that nicotine is highly addictive.
This compromise package would be better than the present situation. But, given the current legal and political onslaught against the industry, the deal would hardly be "tough." This is, in fact, the best escape the industry could hope for--an industry wish-list, you might say. The formula is: Let us off the hook and we promise to behave better in the future. But what will guarantee the agreement is enforced?
Even if it were in Congress' power to grant a retroactive immunity--and this is a murky and open question--the implementation of such a gentlemen's agreement is still subject to the sway of politics. The FDA, until recently, was a patsy of the tobacco lobby. To assume that the current anti-tobacco stance will continue is naive.
In pressing for a deal, Kluger is dismissive of the true value of the recent cache of company documents that have themselves played such a large part in setting in motion the current attacks against tobacco. The thousands of internal reports and memos from the Brown & Williamson tobacco company gathered by Professor Stanton Glantz and his colleagues were published recently by the University of California Press in an annotated and meticulously-referenced version. These documents provide the first look at the intensive scientific research carried out by the industry, particularly into nicotine pharmacology. And industry research demonstrating how smokers compensate for low-nicotine brands by smoking more and blocking the air holes in the filter was 10 years ahead of independent research.
At 500 pages, this volume, called The Cigarette Papers, is not for the faint-hearted (neither is Kluger's tome, for that matter). But the two works need to be read side-by-side as standard texts on how unscrupulous businessmen can peddle a dangerous product and get away with it for so long.
That Kluger looks down his nose at Glantz--and also at what he regards as the misguided state attorneys general and the scruffy product liability bar now furiously challenging the tobacco companies in court--is to his discredit. If it is true that the companies are anywhere near the bargaining table, then it is largely the pressure from these groups that has brought them there.
Kluger's smugness detracts from the enormous worth of his own text and becomes somewhat irritating in regard to his grand compromise. There are several legal points that he has chosen to gloss over, puzzling for an author who is otherwise so comprehensive.
In making his case for reasonable solutions, Kluger rails against the "half-truths" spouted by the "tobacco-bashers" and in media "exposes." For example, he calls a "half-truth" the assertion that smokers impose a heavy tax burden on the rest of us through Medicaid and other public expenditures to treat smoking-related diseases. Kluger has the odd notion that the money cigarette smokers pay in taxes should be credited against damage the tobacco industry does.
He is also oddly dismissive of the seven state claims for reimbursement of smoking victims' medical expenses. He takes the industry line that these claims are, in essence, personal injury claims of the sort pre-empted by the warning labels on cigarette packs, and upheld by the Supreme Court in the Cippolone case. In fact, the Court's ruling was much more favorable to the plaintiff's case, keeping open several different causes of action--especially addiction.
The new spate of lawsuits--especially the mass class action suit known as Castano--diverge from previous plaintiff claims of ignorance of tobacco's carcinogenic properties and instead concentrate on its addictiveness. (And here I declare my interest: I am writing a book about these claims.)
The Brown & Williamson documents demonstrate that at least some of the tobacco companies were doing cutting-edge research on nicotine pharmacology in the '60s and had rated the drug addictive, but no warning about addiction was ever conveyed to the smoker. The failure-to-warn-of-addiction theory of liability was first suggested in 1980 by Donald Garner, a law professor at Southern Illinois University. Garner pointed out that a manufacturer is held to the standard of an expert in its product field, and should not wait for the danger to be discovered by others. The tobacco companies, of course, knew well ahead of independent researchers of nicotine's addictiveness. "Don't all manufacturers control the components of their products?" Kluger asks. Well, perhaps. But when they lie about it, there's a problem.
Garner also explained that the plaintiff's continued use, or misuse, of the product is not a defense to liability because, given the addictive nature of the nicotine, it is questionable how voluntary continuing to smoke could be. With more evidence of "slippery conduct" by the tobacco companies appearing in documents and depositions each month, Kluger's haughty dismissal of current claims seems rash indeed.
Perhaps he should have called his book "Ashes to Riches," for that is what his draft deal proposes.
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|Article Type:||Book Review|
|Date:||Jun 1, 1996|
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