by Allan Brandt
By definition, tort litigation centers on the compensation of parties injured through fraud, negligence, misrepresentation, and other misdeeds. But in the second half of the twentieth century, litigation began to serve other critical roles as well. It facilitated new forms of corporate exposé by forcing industries to open their records regarding their understanding of the risks of their products, their decisions regarding disclosure, and their marketing practices. These were areas where traditional rule-based regulatory mechanisms often failed to produce timely public knowledge.144 Nowhere were these regulatory failures as significant as with the tobacco industry.
The political and cultural hostility to tort litigation tended to obscure the fact that conventional legislative routes to regulation of tobacco had been rendered virtually inaccessible by the industry’s powerful influence over Congress and state legislatures. Attempts to regulate the tobacco industry had usually—when they yielded any results at all—ended in legislation that protected the industry from regulation. The resort to litigation grew out of these long-standing failures of political and regulatory efforts. During the 1980s and 1990s, prior to the state litigation, tobacco taxes had actually been declining in real terms. After the 1984 legislation requiring rotating warning labels, Congress had been all but silent on any serious tobacco legislation. Even in the aftermath of the Waxman hearings and the FDA findings, it was clear that no new public health legislation to reduce tobacco use would emerge from Congress.
The courts were, therefore, a critical venue not only for injured smokers but for anyone hoping to advance public health policies regarding smoking. Tobacco litigation—even when plaintiffs lost—had a major impact on the larger social and political debates about cigarette smoking, the industry, and responsibility for harm.145 The failures of the MSA show the limitations of public policy litigation, but these failures are not necessarily inherent in the process.
To view litigation and legislation as mutually incompatible is to misrepresent their complex historical relationship. The question was never legislation or litigation.146 Any successful strategy would need to employ both approaches. The legal battles over tobacco, for example, influenced deeper cultural and political contests about smoking in American society. Slowly, but with increasing severity, the industry’s traditional legal defenses, centering on individual responsibility and assumption of risk, came under scrutiny in the courtroom. The decline in the social status of smoking, the recognition that secondhand smoke harmed nonsmokers, the heightened recognition of the addictive properties of nicotine, and the revelations of industry targeting of children, all led to a fundamental reconsideration of the “imposition” of harms.
But perhaps the most significant change was the public recognition of the industry’s extensive knowledge of the harms of its product, and its concerted efforts to obscure these facts through scientific disinformation and aggressive marketing. Without the lawsuits, the documents proving these charges would most certainly have remained in the industry’s legal vaults. The emergence of a massive archival record demonstrating industry knowledge, action, and intent had created unprecedented legal vulnerabilities. The debate over legislation versus litigation fails to recognize the importance of bringing this history into the open. In this fundamental respect, the history of the cigarette served to define and shape the contemporary policy debates about how to best limit its manifold harms. Without the litigation, this history could not be known and so could not inform any legislative effort.
For all the significant political objections to judicial activism and the public disparagement of trial lawyers, it seems important to recognize that the legal process serves certain social ends that the legislative process is poorly structured to address. The courts possess a highly articulated set of procedures for the production and evaluation of evidence on behalf of the public adjudication of responsibility for harms. Demonstrating these harms, within institutional structures that are relatively insulated from the pressures of political and economic interests, serves a critical social good. It is because they brought such facts into public view that the courts have offered such a crucial civic arena for pursuing the control of tobacco.
By the end of the twentieth century, American society witnessed radical changes in cigarette consumption. In the years following the MSA, tobacco sales fell by more than 20 percent, reaching a level not seen since 1950.147 The percentage of adult smokers was about half what it had been at the time of the release of the first surgeon general’s report. Despite the striking fall in consumption, more than 50 million Americans—more than one in five adults—continue to smoke regularly. More than 70 percent of these smokers say they want to quit, but even with the development of nicotine replacement technologies (patch, nasal sprays, gum) and other pharmacologic agents now available to assist in quitting, fewer than one in ten smokers currently succeed at the end of one year. Cessation rates are considerably lower among smokers who attempt to quit without counseling or treatment.148 Unlike the situation in the middle of the twentieth century, when cigarette consumption crossed all socioeconomic segments, today smoking is highly stratified by class and education. And smokers who are less well-off are far less likely to quit. Such data is not surprising given the substantial social science and behavioral research showing that successful quitting is intimately connected to education, strong and supportive social networks, and access to health care.149 The clinical and behavioral techniques for helping people quit are limited; further reductions in smoking will require a combination of policy and clinical innovation as well as access to services.150 By any standards, nicotine dependence is a powerful biological and cultural process, difficult to break, with a high likelihood of relapse.
Despite the impressive reductions in consumption, cigarette smoking remains an enormous risk to health and well-being in this new century. Smoking is—by far—the most significant preventable cause of death in the United States, resulting in more than 430,000 deaths each year from heart disease, emphysema, stroke, and lung cancer, among other causes. Lung cancer is not only a stigmatized disease; it is also the most prevalent cancer in the United States, accounting for some 160,000 deaths annually. The new techniques of molecular genetics have been applied to lung cancer, addiction, and other diseases, indicating the possible role of heredity in susceptibility to these diseases. But the reality remains that cigarette smoking is a prominent risk for many diseases in addition to lung cancer; as a result, the behavioral-environmental dimensions of smoking overwhelm the significance of specific vulnerabilities. From both a clinical and public health perspective, the prevention of smoking will undoubtedly remain the single best way of avoiding its potentially devastating and multiple effects. Even if we could know, for example, that we are not at high risk for lung cancer due to genetics, it would also be clear that this chromosomal good luck does not protect us from emphysema, cardiovascular disease, and more than a hundred other tobacco-related diseases.151 As a result, the genetic basis of lung cancer is a more interesting and important question for the scientific researcher than it is for the smoker. The idea that cancer is a “genetic” disease—long trumpeted by the tobacco industry—is both a truism and a fallacy. It flies in the face of overwhelming evidence that disease is inevitably a complex amalgam of individual susceptibilities and exposures to social determinants.152
Given the proclivity to hold smokers accountable for their plight, lung cancer has attracted little research funding. In 2005, $1,829 was spent in federal funding per lung cancer death; for each breast cancer death, federal funding came to $23,474. And yet there are currently four times as many lung cancer deaths each year. Over the last twenty-five years, the five-year survival rate for lung cancer has only inched forward from 13 to 15 percent. Smokers who become ill with lung cancer and other diseases have been noted to internalize the stigma and blame that may be heaped upon them.153 The recent deaths of ABC news anchor Peter Jennings and of Dana Reeve have drawn renewed attention to lung cancer advocacy, re
search, and treatment. 154
The failure of the McCain bill and other proposals to regulate tobacco was a powerful reminder that calls for congressional action are likely to go unheeded. Legislative action would require the development of political will that public health measures have largely failed to generate. It is difficult, for example, to name a single piece of major public health legislation since 1995. But public health has rarely generated a serious and effective constituency, except in moments of crisis. Given the long history of tobacco use, it proved impossible to frame cigarette smoking as a crisis. Certainly, by the end of the century, there was little public support for the tobacco industry. After the CEOs’ shameless denials at the Waxman hearings, the industry was widely perceived as both dishonest and greedy. But the resulting moral indignation did not lead to effective regulation. It was possible to condemn the industry and simultaneously resist further regulatory action. This was the essential dilemma of public health and tobacco at the end of the century.
There are powerful cultural values that account for the resilience of the cigarette. Tobacco use continues to be widely viewed as the responsibility of the individual smoker. Even as the tobacco control movement has worked to contest this view—by emphasizing the addictiveness of nicotine and the aggressive pitch to children—common cultural logic continues to assert that smoking is a matter of individual control. This view takes tobacco regulation off any list of political priorities. At the same time, efforts to bring Big Tobacco under regulatory mandates are viewed with considerable skepticism in a polity hostile to big government, big taxes, and Big Brother. Cigarette use, in this view, is an area where government pursuit of social goals must yield to the individual’s right to disregard health and well-being. 155 The stigmatization of the smoker, which occurred in the last decades of the twentieth century, had the effect of further eroding the political will to regulate tobacco.
Because they are attributed to individuals, large and concrete risks, like smoking, are perceived far more benignly than are smaller but more dramatic risks. Because the effects of tobacco are slow—and iterative—and produce diseases that have other causes and explanations, often later in life, they seldom arouse fear commensurate with their impact.156 If, for example, we were to identify an infectious organism that caused lung cancer, heart disease, and emphysema in a substantial number of people who were exposed, one can only imagine the level of concern and political action that would result. But we have an industry that produces such an “agent” with a warning label printed on the side of every package.
As a culture, we seek to insist—despite much powerful evidence to the contrary—that smoking remains a simple question of individual agency, personal fortitude, and the exercise of free will. Certainly, if it involves imposing risks on others, its public use should be legally curtailed. As a result, there has been much support for restrictions, increasingly common, prohibiting smoking in public places. But at the same time, there has been an ongoing insistence that smoking remains an aspect of personal agency, beyond the ken of regulatory interest. This view is widely held because it protects our larger sense of individual control and agency. Smokers, who are easy to stigmatize and condemn, assure our sense of a world in which individuals do make decisions, exercise agency, and control their destinies. Keeping smoking essentially unregulated assists us in a larger cultural denial of forces over which we may have little control. In this sense, we need the cigarette and the smoker to make sense of our world. And the tobacco industry is willing and eager to assist in the assertion of the logic of individual responsibility. Take, for example, the recent major advertising campaign sponsored by Philip Morris known as “Quit Assist.” These widely viewed television spots and pamphlets—often perceived as counterintuitive—contend that Philip Morris, the nation’s biggest producer of cigarettes, is eager to support efforts to restrict youth smoking and aid those who wish to quit. Not only do such public relations efforts attempt to demonstrate that the company now is a “responsible corporate citizen,” the campaign also seeks to underscore the claim that smoking is simply a matter of adult “choice.”157 These ads have been shown to have little or no effect on quitting, but they are quite effective in shoring up the industry’s principal defense of cigarette smoking as an individual responsibility. If Philip Morris is offering to help you quit—and you don’t—who should be held accountable?158
Resisting the blandishments of the companies and the addictiveness of nicotine is one cultural test of our discipline, independence, and individualism. 159 This cultural idiom—central to the way we think about vulnerability, health, and disease—continues to shape the history of the cigarette in our time. But as the last century has shown, this orientation to the cigarette is a product of time and culture, subject to change. That said, it is powerful and resilient, and vast corporate interests seek to reify these values.
Our insistence on personal responsibility may be a double-edged sword. It may encourage a heightened sense of individual control over health but also alienate and distance those who become ill. I cite a common scenario: “I have a friend in the hospital with lung cancer.” First question: “Did he smoke?” “Two packs a day—tried to quit and failed.” A shrug of the shoulders: “What did he expect?” This quick and commonplace response reveals the nearly instantaneous mechanism by which we identify the smoker as the one responsible for his sorry fate. By doing so, we dissociate ourselves from the complex forces—economic, corporate, cultural, and biological—that have brought such smokers to their plight. Shall we consider smokers ignorant and stupid for maintaining an “unnecessary behavior” that has clearly been defined as highly dangerous, or shall we recognize the power of advertising and cultural conventions, as well as the biological and psychological qualities of addiction that constrain individual choice?
Calls for public responsibility need not erode our expectations of individual responsibility. It would be far easier and more appropriate to consider smoking truly an individual choice if, for example, cigarettes were subject to a serious and effective regulation. Setting individual versus social responsibility creates a false dichotomy that has served the tobacco industry’s interests.
This is not to suggest that smokers are absolved of accountability. To the contrary, most investigators of addictive behaviors confirm that individual motivation and acceptance of responsibility are critical to cessation and recovery. But we should not allow the industry to use calls for individual responsibility to secure a free ride at the expense of smokers and society. Indeed, the very notion that responsibility can be allocated either to smokers or the industry misrepresents a deep historical reality about the interconnectedness of culture, behavior, and commerce in the last century.
By the early years of the new century, the legal assault on Big Tobacco that once looked so promising had been all but repelled. The industry had secured new allies by providing a steady flow of state revenues. Now state governors and attorneys general would help the companies fight off litigation. In the last decade of the twentieth century, many tobacco control advocates had dared to envision a broken and bankrupt industry, with jail terms for executives whose perjuries were the least of their crimes. To the contrary, the industry emerged on the other side of the decade decidedly intact, ready to do business profitably at home and abroad.
V
GLOBALIZATION
A good cigarette is an easy and early luxury for a man
after he breaks through the barrier of poverty. . . . We
know that more smoke signals a burgeoning economy.
Where there’s smoke, there’s a market for many American
products.1
GEORGE WEISSMAN, 1962
CEO, PHILIP MORRIS
I was with some Vietnamese recently, and some of
them were smoking two cigarettes at the same time.
That’s the kind of customers we need!2
SENATOR JESSE HELMS, 1996
The last thing we should expect the WH
O to be doing is to prioritize smoking—namely, a voluntary health risk the clinical effects of which tend to emerge after the age at which people in poorer countries can expect to die.3
ROGER SCRUTON, 2000
I’ll tell you why I like the cigarette business. It cost a penny to make. Sell it for a dollar. It’s addictive. And there’s a fantastic brand loyalty.4
WARREN BUFFETT, 1988
CHAPTER 13
Exporting an Epidemic
ALMOST ALL OF US have watched someone trying to escape a nicotine addiction, or gone through it ourselves. It is a struggle that sometimes ends in triumph, more often in defeat, but many have nonetheless accomplished it over the last few decades. In the United States, the proportion of smokers in the adult population has fallen from a high of 46 percent in 1950 to 21 percent in 2004.5 The wide diffusion of knowledge about the risks of smoking and a cultural climate increasingly antithetical to smoking have meant that many teenagers who might well have taken up cigarettes in the past no longer do so. The public rejection of cigarettes is possibly unique: there may be no other instance in modern history in which a popular and addictive behavior was so fundamentally transformed in the public eye, or in which so many have quit or resisted such an intensively promoted and marketed legal product.6
The unprecedented number of smokers giving up cigarettes has reconfirmed what scientists and physicians so ably demonstrated at mid-century. As tobacco use in the United States declined sharply starting in the late 1960s, rates of lung cancer and heart disease have now begun to fall.7 These data show that it is possible to modify even the riskiest, most addictive behaviors, given the requisite scientific knowledge, cultural transformations, and personal motivation.8 But when we look at current cigarette use, we see that the success of tobacco control is decidedly limited. The poor and poorly educated are disproportionately represented among remaining smokers.9 And there are a number of studies indicating that those who continue smoking today may well be more deeply addicted and smoke more cigarettes than smokers in the past.10