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Filter tips: more ways to smoke the tobacco companies.

In addition to the fraud approach, there are a number of new strategies still to be tried in tobacco litigation. One would connect addiction to cigarette companies' long-standing practice of targeting children. The tobacco industry has known for at least 20 years that nicotine is highly addictive--as addictive as heroin or cocaine. A Philip Morris researcher, reporting to his superiors the results of a confidential 1972 conference of tobacco industry scientists, noted that "No one has ever become a cigarette smoker by smoking cigarettes without nicotine." He suggested that they "think of the cigarette pack as a storage container for the day's supply of nicotine."

Even late-l9th century jurists--hardly a soft-hearted lot-came down hard on landowners who held poorly-kept or dangerous property where children, for one reason or another, were drawn to play and were injured. The legal position of the cigarette manufacturers with regard to this "attractive nuisance" concept is much worse: The children in question are paying customers (not trespassers), and they are hooked before they have the adult sense to understand the dangers of smoking. And they don't merely wander into nicotine addiction, but are lured by finely honed marketing campaigns, Marlboro cowboys and cool cartoons of Joe Camel. Manufacturers, far from being indifferent to children, compete for them.

Another legal approach alleges that there is a kind of conspiracy between cigarette companies and local vendors to sell cigarettes to children. First, it charges that tobacco companies have been inviting kids to smoke for years using promotional campaigns like the one for Camels, which allowed customers to trade in coupons from each pack for the latest in beach wear, and for Parliaments, which are advertised as "the perfect recess." Second, it charges that vendors who sell cigarettes rarely ask minors for identification. A test case brought against a Massachusetts convenience store chain for hooking two teenage plaintiffs on nicotine by illegally selling them cigarettes was settled in 1991, with the chain agreeing to require positive ID's from young would-be tobacco customers. Philip Morris was sued as a co-conspirator, but wriggled out of the suit by denying knowledge that the particular vendor was selling cigarettes to kids. The courts made clear that in similar cases in the future, this escape hatch can be closed with a letter to the company stating that sales to minors at a particular store are occurring.

Smokers may employ another untried argument against the tobacco companies by suing for the cost of overcoming their addictions. To this day, cigarette companies have denied that their product is addictive, but medically there can be no doubt that nicotine gum or patch users were indeed addicted. Their physicians had to so conclude before prescribing these remedies.

Individual nicotine addicts who have tried or wish to try to quit smoking can bring small claims court actions against cigarette manufacturers for the costs of their stop-smoking endeavors. Damages can include the costs of clinics, doctor visits, and nicotine replacement therapies. And because these individual claims would be quite similar--each one seeking $1,000 or less--and more than a million in number, they might be effectively combined in a class action suit. The patch, for instance, is looking like an $800-million-a-year market. Why shouldn't the tobacco companies foot the bill?

Another set of victims of the cigarette makers are the public and private health insurers (and through them, all of us) who pick up the more than $20 billion annual tab for tobacco-caused diseases. Small modifications of existing legal doctrines, at either the state or federal levels, would leave this cost where it belongs--with the cigarette companies. All that's needed is legislation declaring cigarette manufacturers liable, regardless of fault, for medical expenses and the lost income of smokers who contract lung cancer and other cigarette-caused diseases.

Richard Daynard is a professor of law at Northeastern University and the chairman of the Tobacco Products Liability Project.
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Title Annotation:litigation
Author:Daynard, Richard A.
Publication:Washington Monthly
Date:Jan 1, 1993
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