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Up in smoke?

It was only a few months ago that regulation of the nation's tobacco conglomerates seemed in sight, after a fifty-year crawl. But now it's go-slow season in Washington on the public-health liability settlement proposed in June between Big Tobacco and various state attorneys general. The White House staff is divided over the settlement, which would require Congressional approval, and Capitol Hill leaders indicate no action until next year.

The official explanation is that the proposed settlement raises, in the words of The New York Times, "perplexing questions of law, economics and public health." But it's also because the anti-tobacco lobby is itself acrimoniously split over the plan. Ralph Nader, former Surgeon General C. Everett Koop and former F.D.A. Commissioner David Kessler, among others, propose ditching the settlement. (Kessler and Koop have their own blueprint which they would like to see translated into law.) The Campaign for Tobacco-Free Kids and others see the settlement--if improvements can be negotiated--as a chance to make an immediate difference in public health.

We have already expressed skepticism about the settlement, an unsatisfactory compromise: The central requirement that tobacco companies be freed from future class-action liability is a particularly worrisome, constitutionally dubious infringement on the public interest.

There are good reasons for more public conversation. Those who would dump the settlement think the string of class-action lawsuits by states will bankrupt the tobacco giants and that popular sentiment--once the depth of Big Tobacco's duplicity is exposed in newly revealed records--will swing Congress toward tougher regulation. These are exciting scenarios, but they represent a dangerous high-stakes gamble. On the legal side, jurors may still be inclined to view smokers as partially responsible for their addiction; and the federal courts at all levels remain dominated by Reagan/Bush-era appointees with limited enthusiasm for corporate regulation. Indeed, the F.D.A.'s recent plan to control youth-oriented advertising was struck down in federal district court and received a skeptical hearing before the Court of Appeals for the Fourth Circuit, which will hand down its decision soon; and last year the Supreme Court struck down broad regulation of alcohol advertising. Politically, the anti-tobacco atmosphere could fade; the public is not known for its lengthy attention span for corporate scandal.

From this point of view the settlement, for all its limitations, embodies gains that seemed impossible even a year ago, including the recognition of cigarettes as drug-delivery devices, and a cash settlement plus fines designed to push the price of cigarettes out of the reach of youth, the group whose smoking habits continue to rise alarmingly. (Kessler and Koop's proposal would go further, adding a whopping--and regressive--$2 per pack consumer tax.) Even the unpalatable scheme to free companies from class-action liability is offset by a $4 billion compensation fund for individuals, which could stand enhancement but is not so different from workers' compensation funds for on-the-job injuries. And in some respects, notably regarding advertising and product placement aimed at youth, the settlement is more stringent and specific than the Koop-Kessler blueprint. As the Washington, D.C.-based Advocacy Institute says of the June settlement in a recent analysis, "no other strategy--litigious or political--has wrung as much out of the industry as it proposes to do."

So here are some hard questions before writing off the settlement. How tar would Congress, even if free of the influence of tobacco money, really go on cigarette regulation? There are, after all, other interests at stake than campaign funds, reluctant though some may be to acknowledge them: regional economy and agriculture, not to mention such unpredictable values as prickly American individualism. What are the reasonable real-world alternatives, with the tobacco conglomerates, like parties to any lawsuit, holding veto power over any court settlement?

Despite its recent success, the anti-tobacco campaign is a movement riven by unspoken divisions--between public health advocates and anticorporate crusaders, between Washington lobbyists and grass-roots activists. The settlement is a wedge that has widened these divisions. If in the coming months anti-tobacco campaigners fail to approach this debate with care, the public could be left with little gain.
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Title Annotation:the proposed liability settlement against the tobacco industry has been delayed, despite the fact that it probably represents the best conclusion from the public's standpoint
Publication:The Nation
Article Type:Brief Article
Date:Sep 29, 1997
Previous Article:Sunday.
Next Article:English uber alles.

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