The Cigarette Century

by Allan Brandt

  The range of liability claims brought unsuccessfully against the tobacco companies since the mid-1950s included negligence, misrepresentation, and fraud (among other torts). Perhaps the most well-known case in the early phase of litigation against the tobacco companies was Green v. American Tobacco. Edwin Green had begun smoking Lucky Strikes around 1925 when he was sixteen years old. In the mid-1950s he developed lung cancer, and in 1957, as the health evidence implicating cigarettes grew, he filed a suit against American Tobacco for $1.5 million. The suit was continued by Green’s family after he died in 1958.5

  In all such suits, the industry mounted a vigorous, three-part defense. First, it presented experts, such as C. C. Little of the Tobacco Industry Research Committee (TIRC), who testified that it had not been proven that cigarettes cause lung cancer.6 Many of these experts were directly employed by the TIRC or were dependent on it for research funding.7 According to the argument they put forward, the plaintiffs could not claim that the consequences of smoking were “foreseeable” and that the companies had a legal responsibility to warn consumers and modify their product, because the cause of lung cancer remained in scientific doubt. Second, industry lawyers argued that no specific case of cancer could be conclusively linked to smoking. Given the complexities of pathological evaluation, there were always experts willing to disagree with any particular diagnosis. Third, the defense contended that the “controversy” regarding smoking and health was well-known and highly publicized; as a result, plaintiffs were well-informed of any “alleged” risks. They had personally accepted any risks that cigarettes might possess. Advertisements and other promotions were well understood by the public to be “puffery” and thus did not constitute an implied warranty of the product.8 Plaintiffs who proceeded in spite of these arguments soon found themselves facing an even higher hurdle: a blizzard of briefs, motions, and other time-consuming and costly legal initiatives brought by the defendants.9

  As was typical in early tobacco litigation, the Green case had a complex procedural and legal history. After a number of appeals, it was remanded back to the U.S. District Court for the Southern District of Florida, where it had been originally tried. The exclusive issue confronting the jury, according to the judge’s charge, was to determine if the plaintiff could prove that “the cigarettes were not reasonably fit or wholesome, as the case may be, for the use of the general public and for the use for which they were sold.”10 This would constitute “a breach of the implied warranty for fitness, which is imposed upon the manufacturer who sells cigarettes.”11 The jury ultimately returned a unanimous verdict for the defendants. Although it held that cigarettes do cause cancer, they were nonetheless “reasonably fit” for ordinary use. “Good tobacco” was not a defective product. The decision underscored the difficulties inherent in suing Big Tobacco.

  The historical development of American tort law is predicated on the theory that it leads to greater safety of consumer goods. Since manufacturers are put at risk for the costs associated with the harms caused by faulty products, they have a strong incentive to modify them. Moreover, if they do not modify their products, companies are responsible for the excess social costs that ensue. Following World War II, this theory inspired a dramatic expansion of so-called strict liability torts. In these cases, courts do not need to evaluate whether or not a given company has acted negligently; manufacturers are simply deemed responsible for the harms generated by the product. Tort law became a tool for indirect regulatory policy; the full costs of the product would be borne by a company with appropriate incentives for safety and risk reduction.12

  William Prosser, a law professor and attorney in Minnesota and one of the giants in the elucidation of tort theory and practice, described strict liability in 1941 as a means of “allocating a more or less inevitable loss to be charged against a complex and dangerous civilization, and [placing] liability upon the party best able to shoulder it.”13 Strict liability was “unburdened by notions of fault.”14 But while Prosser had been a prime mover for expanding strict liability, he was also the principal figure in assuring that tobacco, liquor, and pharmaceuticals did not face liability as “unreasonably dangerous” consumables. The American Law Institute’s highly influential treatise on tort law, drafted by Prosser in 1965, declared:The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. Good Whiskey is not unreasonably dangerous merely because it will make some people drunk, and is especially dangerous to alcoholics; but bad whiskey, containing a dangerous amount of fusel oil, is unreasonably dangerous. Good tobacco is not unreasonably dangerous merely because the effects of smoking may be harmful; but tobacco containing something like marijuana may be unreasonably dangerous. Good butter is not unreasonably dangerous merely because, if such be the case, it deposits cholesterol in the arteries and leads to heart attacks; but bad butter, contaminated with poisonous fish oil, is unreasonably dangerous.15

  It was this notion of “unreasonably dangerous” that guided the verdicts in Green and other early tobacco cases.16 If the product was made as designed and as consumers expected, then one could argue that smokers “assume” the risks of their own behavior. Prosser’s restatement of tort law was something of a “grandfather clause” for tobacco, exempting it from the emerging legal theories of strict liability. Since by the 1960s the harms of tobacco were deemed to be widely known and understood, the industry was found to be immune from claims that the product was “unreasonably” dangerous. The dramatic expansion of product liability in the 1960s and 1970s was ironically built on the exclusion of the single most dangerous product in the consumer culture. Plaintiffs seeking compensation for tobacco-related harms were forced to prove negligence, fraud, and other acts of industry perfidy. As a result, tobacco litigation would continue to center attention on fundamental issues of moral responsibility, personal guilt, and blame.17

  After the first wave of litigation in the 1950s, potential plaintiffs faced even higher obstacles as the industry diligently worked to burnish the assumption-of-risk defense. The introduction of mandatory warning labels—despite their vague wording—had the effect of underscoring the notion: use at your own risk. David Hardy, a partner at Shook, Hardy & Bacon, the Kansas City law firm that fashioned the industry’s principal defense strategies, explained that warning labels were among the industry’s most important weapons against plaintiffs. “Once the purchaser is informed of a danger,” Hardy argued, “the burden of any injuries incurred from that danger would shift to him.”18 The assumption-of-risk defense eventually preempted earlier industry claims that the harms of smoking were unforeseeable; these had been significantly eroded by many studies conducted in the 1950s and 1960s. Certainly, after the release of the surgeon general’s report in 1964, it was no longer possible for the industry to seriously make this argument. It would now, ironically, use the emerging knowledge of the harms of smoking as its principal defense. If there was a risk, even though “unproven,” it nonetheless must be the smoker’s risk, since the smoker had been fully informed of the “controversy.” The industry had secured the best of both worlds: a “warning” label that deterred few smokers but could nonetheless be invoked to defeat litigation. In a culture that emphasized individual responsibility, smokers would bear the blame for their willful risk-taking.19

  The federally mandated warning label turned into a major triumph for tobacco defense teams. Attorney Richard Wegman compared lawsuits against the tobacco companies to a case in which a woman had (unsuccessfully) sued a candy company after she knowingly ate a worm-infested candy bar:The cigarette smoker of today is in much the same position, except that the facts in his situation are even more compelling. He is aware that medical evidence has clearly indicated cigarettes are the major cause of lung cancer. He is aware that even the moderate smoker substantially increases his risk of premature death. Nevertheless, he continues to smoke. The requirement
s for assumption of risk are all satisfied. It is difficult to imagine twelve reasonable men coming to any other conclusion.20

  By the early 1980s, as product liability litigation came to be a common feature of American tort law, some legal analysts began to focus on the essential paradox that while tort law held American corporations to an increasingly high standard regarding the safety and toxicity of their products, the makers of cigarettes had never been successfully sued. Law professor Donald Garner, writing in 1980, noted that the tobacco industry had enjoyed “almost an imperial form of immunity,” turning back nearly three hundred lawsuits since the mid-1950s without a single award to any plaintiff. 21 Marc Edell would later conclude that the “cigarette manufacturers in the United States have enjoyed an immunity from liability far beyond the wildest dreams of any manufacturers.”22 Tobacco companies had worked diligently to secure this immunity through aggressive legal strategies, regulatory politics, and cultural influence. Ever since persuasive scientific data implicating cigarettes as a cause of disease had begun to emerge, the threat of product liability had hung over the industry. As a result, legal counsel had come to dominate every aspect of the industry’s strategic policy, from scientific research and product design to promotion, public relations, and the industry’s approach to regulation.23

  When Edell took on Cipollone’s case, he was convinced that the important social and cultural shifts in public attitudes and knowledge about tobacco had created a “more receptive” legal climate to sue. In particular, he noted the accumulation of scientific and medical findings on both causation and addiction.24 Companies could no longer claim, as they had for a generation, that the links between smoking and disease were “not proven.” Straining credibility in this way was unlikely to inspire sympathy in a jury. Moreover, new scientific data demonstrating the addictiveness of nicotine undermined the notion of consumer “choice.” Edell concluded as well that the tobacco industry was vulnerable under new risk-utility provisions of New Jersey state tort law, which held that risky products must provide important advantages to consumers. Cars might be dangerous, but they offered significant personal and social benefits. Given the well-documented dangers of smoking and the few, if any, benefits, he believed the product was highly vulnerable under these provisions. Rose Cipollone, he would argue, had been convinced through fundamental misrepresentations to use a highly dangerous product with minimal, if any, utility.

  Cipollone’s smoking history was typical of her generation. Born Rose DeFrancesco in Queens, New York, in December 1925, at age sixteen she began smoking Chesterfields, then the third most popular brand behind Camel and Lucky Strike. Only two years earlier, DeFrancesco’s father had died of a stroke that her mother attributed to his heavy smoking. But despite her mother’s entreaties that smoking was not “ladylike,” by the end of 1943 she was smoking a pack a day. In those days, there were many inducements for young girls taking up smoking. A typical Chesterfield ad from 1941 pictured a comely Ellen Drew, Chesterfield’s Girl of the Month, waving a racing flag in her right hand and a cigarette in her left. “They Satisfy Millions,” the ad declared. As we have seen, smoking was by this time highly popular and accepted among women as well as men. In 1940, some 15 to 20 percent of women smoked and 53 to 64 percent of men. By 1944, a Gallup poll reported that 48 percent of adult men and 36 percent of adult women smoked. Urban women, like Rose, were considerably more likely to smoke than rural women.25

  In 1946, Rose DeFrancesco met Antonio Cipollone, and they were married a year later. He urged her to quit. Soon pregnant with their first child, Rose Cipollone made her first—unsuccessful—attempt to quit. Her husband apparently “begged her” to stop during the pregnancy. “I thought, oh, I’m going to be so good that I will not smoke and endanger the life of my child or myself,” she explained in her deposition before the trial. Even in those years, before the studies by Doll and Hill or Graham and Wynder were published, Cipollone’s worries were common. She cut down from a pack and a half a day, but continued to sneak cigarettes throughout her pregnancy.26 Quitting or even cutting down, she discovered, was no easy matter.27

  In 1955, as public concern grew following reports in the media linking lung cancer to cigarettes, Cipollone switched from Chesterfields to L&Ms, a new filter cigarette that Liggett & Myers was promoting as “Just What the Doctor Ordered.” In her deposition, Cipollone said she made the switch because “they were talking about the filter tip and it was milder, and a miracle that would keep that stuff inside the trap, whatever.”28 L&M’s “pure white Miracle Tip,” the ads promised, offered “much more flavor” and “effective filtration.” Over half of women smokers had switched to filters by 1958, as had 42 to 47 percent of men.29

  In 1968, Cipollone changed brands again, this time to Philip Morris’s new entry, Virginia Slims, designed exclusively for the women’s market. The Virginia Slims campaign tied the brand to emerging feminist sentiment, spoofing early twentieth century strictures against women smoking. The Leo Burnett agency, which had also created the “Marlboro Man” campaign, described Virginia Slims as “the first cigarette for women only . . . designed slimmer for a woman’s slimmer hands and lips . . . and packaged in a slim purse pack.” Internal memoranda suggested that the new brand should be “aspirational.” In establishing “brand personality” the agency sought to make “a brand that was feminine but was non-threatening. It was ‘user friendly.’” Virginia Slims women were women who could make choices but had not lost their femininity. Advertisements for the brand featured fashionable young women and asserted, “You’ve Come a Long Way, Baby.”30 Cipollone explained that she “thought they were very glamorous. . . . [T]hey were long, and it represented beautiful women.” The models “really got to me.”31

  When Cipollone changed brands yet again, in 1972, it was for health reasons. Parliament, another Philip Morris product, offered a recessed filter resembling a cigarette holder. “I was starting to hear noises about smoking and tobacco and, you know, all that kind of thing that I didn’t want to listen to, but I was listening to it,” Cipollone said at her deposition.32 “Most low-tar cigarettes are flush tipped,” explained a Parliament advertisement. “So tar buildup is flat against your lips.” Such ads were designed to appeal to smokers with concerns about the health impact of smoking. The ad announced that Parliaments were the “thoughtful choice in low-tar smoking.”33

  Cipollone made her final brand shift two years later, when she began smoking Lorillard’s True cigarettes, introduced in 1966 as a “health conscious” brand. By this time, it was becoming more common for physicians to urge their patients to quit smoking or cut down. Cipollone’s doctor apparently told her that if she was going to continue to smoke she should switch to True, which was highly touted—by Lorillard—as being low in tar and nicotine. She smoked this brand until 1982. “I figured they were better,” she said.34 True’s advertisements focused on the growing segment of the market that was considering quitting. “I thought about all I’d read and said to myself, either to [sic] quit or smoke True,” a woman in one advertisement explained. “I smoke True.” Some True ads featured head-on shots of the plastic filter insert. True illustrates the subtleties of tobacco marketing in the age of scientific risk; it preserved market share by dissuading worried smokers from quitting.

  Smokers of new filtered and “light” cigarettes soon found that they often smoked more to compensate for the reductions in nicotine that typically accompanied reductions in tar. Since the companies understood that addicted smokers would seek to sustain an anticipated dose of nicotine, they worked to develop cigarettes with “elasticity” of yield.

  In other words, smokers like Cipollone, could select low-tar brands but achieve the same intake of nicotine by altering how the cigarette was smoked (or simply smoking more). Unfortunately, as most data came to show, low-tar and light cigarettes did not reduce the risks of smoking. But as the companies well understood, consumers believed that they had taken action to reduce their risks.35

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p; The industry, in its defense, would use Cipollone’s brand choices as evidence of her capability to make independent decisions. Its lawyers would repeatedly contend that she had made the deliberate and reasoned decision to continue smoking, and that she could have quit if she had so chosen. In a characteristic industry defense, they would assert that she had knowingly assumed the risks of smoking. Although she had tried to cut down after reading articles on smoking and health in the 1950s and 1960s, she had not succeeded. “Of course I didn’t want to believe [that smoking caused lung cancer] because it was very hard to quit and I figured, ah, how true can it be if they strapped a monkey 24 hours to a machine. . . . I figured I’m not strapped to a machine and the government was there and there was no real proof, tobacco companies wouldn’t do anything that was going to kill you.”36

  Just as Cipollone’s smoking history mirrored that of so many others, so too did her medical history. During the mid-1960s she had developed a chronic “smoker’s cough.” By late in the decade, she experienced a series of health problems, including pleurisy, tachycardia, chest pain, and hypertension. A routine medical exam in 1981 turned up a spot on her right lung. Following a second chest X-ray, Cipollone had a partial lung resection with the biopsy indicating “atypical carcinoid of the lung.” Even after this procedure, she continued to smoke, though now often in secret. Wheezing and coughing up bloody sputum, she went in for a bronchoscopy in May 1982, which revealed that the middle and lower lobes of her right lung were now affected. In anticipation of a second major surgery, Rose Cipollone finally smoked her last cigarette. The following month, the entire lung was removed. Her doctors removed a large adrenal mass a year later. When she met Edell in 1983, she was still undergoing treatment, including chemotherapy. But by June 1984, the cancer had spread and was now inoperable. Cipollone died on October 21, 1984, one of about 390,000 smokers in the United States who died of a smoking-related disease that year.37 Her case, continued by her husband, would not go to trial for three more years.