The Cigarette Century

by Allan Brandt

  During the fifth month of the trial, the federal appeals court ruled by a 2-1 margin that the $280 billion being sought by the government was not “forward looking” as required by the statute. Any relief sought by the government must “prevent and restrain” future misconduct, and according to the court, the disgorgement of four decades’ worth of illegal profits did not meet this criterion.14 But the case continued, and the government devised new remedies that were designed to meet the standards established by the appeals court. These included prohibitions on marketing targeted to youth, the elimination of the terminology of light cigarettes, and the dismissal of certain senior managers from the companies. In addition, the government proposed a national cessation program, estimated to cost $5.2 billion per year over twenty-five years. The total cost, projected by physician Michael Fiore, a well-known expert on cessation programs, came to $130 billion.15 At the trial, Fiore presented testimony that showed that this program could reduce the number of smokers in the United States by some 33 million.

  In the final days of the trial, however, Bush political appointees at the Department of Justice ordered the trial team to reduce the government’s request for a cessation remedy to approximately $10 billion. Several expert witnesses then came forward to say that the government had asked them to soften their testimony in the remedies phase of the trial. Eubanks and Brody, according to the New York Times, had strongly resisted the demands of the senior attorneys at the DOJ. In a memo quoted in the Times, they argued that “we do not want politics to be perceived as the underlying motivation, and that is certainly a risk if we make adjustments in our remedies presentation that are not based on evidence.”16 Judge Kessler immediately noted the sudden shift in the government’s position: “perhaps it suggests that additional influences have been brought to bear on what the government’s case is.”17 As Fiore would conclude in an article in the New England Journal of Medicine, “If there is a valid reason for the abandonment of the $130 billion smoking cessation remedy, the Justice Department has failed to articulate it in a convincing manner. As a result, attention has focused on political influence rather than on the compelling portrayal of tobacco-industry crimes presented by the tobacco-team attorneys.”18 Although fifty Democratic senators and congressmen, including Henry Waxman, requested an investigation by the DOJ’s Office of Professional Responsibility, it seemed unlikely that the government’s position would change.19 There had always been a good deal of skepticism about the Bush administration’s commitment to prosecute the case. Public health groups quickly requested that Judge Kessler make them “parties” to the case since their interests were “no longer being adequately represented by the government.” 20 She granted their motion over the objections of the defense.21

  In August 2006, Judge Kessler issued her decision in the case, finding that the tobacco industry had violated the racketeering statutes. Although there had been other adverse decisions for the companies in litigation, the monumental scope of the Kessler decision, its precision and scope, was unprecedented. According to Judge Kessler, the industry had engaged in a fifty-year conspiracy, lying to the American public about their product and its dire consequences for health. “Put more colloquially and less legalistically,” Judge Kessler explained in her 1,683 page opinion, “over the course of 50 years, defendants lied, misrepresented, and deceived the American public, including smokers and the young people they avidly sought as ‘replacement smokers,’ about the devastating health effects of smoking and environmental tobacco smoke.” The companies “suppressed research, they destroyed documents, they manipulated the use of nicotine so as to increase and perpetuate addiction . . . and they abused the legal system in order to achieve their goal—to make money with little if any regard for individual illness or suffering, soaring health care costs, or the integrity of the legal system.”22 Judge Kessler’s decision was a model of reasoned historical and legal analysis.

  At the same time, however, despite her judicial excoriation of the companies, Judge Kessler explained in her ruling that the appeals court had left her with few, if any, remedies to address the massive deceptions and frauds that she so closely documented. Although she ordered the companies to cease and desist in their use of misleading terms like light, low tar, and mild (which the defendants immediately appealed), she did not offer extensive and costly remedies, such as the national cessation program proposed by the government. The force of her findings and her lack of available legal remedies illuminate the central problem with the appeals court decision: it is as if a court had determined that a major crime had been committed, but it could not punish the perpetrator or, for that matter, even restrain its future illegal behavior. It remains to be seen if the Supreme Court (or the appeals court) will review the limitations that have tied Judge Kessler’s hands. Nonetheless, it is critically significant that a federal court has now conclusively found that the industry engaged in a racketeering conspiracy to defraud the American public about the mortal dangers of their product, and that it continues to do so.

  Wall Street celebrated the Kessler decision as a green light for Big Tobacco. But it is possible that this partying is premature. Kessler’s decision (and the recent Florida Supreme Court ruling in Engle) may well open the door to a new wave of litigation based upon the findings in these historic legal cases. These rulings may make it less difficult for new plaintiffs to individually and collectively bring claims against the companies. Litigation remains a looming vulnerability for the industry despite the self-interested claims of Wall Street “analysts” who do the companies’ bidding in the media.23

  That said, there are no easy victories for the forces of public health in the tobacco wars, and the perpetual prediction of a knockout blow that radically reforms business as usual in the tobacco industry is certainly not in the immediate offing. United States v. Philip Morris has become—at least for the time being—yet another example of how the promise of tobacco control keeps getting turned upside down.

  At times, as I watched the trial unfold, I felt that Eubanks, Brody, and their small team of DOJ career attorneys were all that stood between the tobacco industry and the future global pandemic. If the industry could remove this last major legal obstacle, it would cross over into a new era in which the threat of litigation had been all but removed. If the tobacco companies could win this case, they would have gotten away with the crime of the century. And perhaps they have.

  Time and again, the tobacco industry has proven remarkably successful in devising new ways to resist public health regulations and promote its product. The industry is here to stay, and no historian is likely to fundamentally alter how it does business, in the United States or around the globe. But understanding the history of cigarettes may be a small but important element in the process of building societies and cultures that know their dangers and have strategies for their control. It seems to me that United States v. Philip Morris is an example of how we might recover a “usable past” that serves the public good.24 And it is equally critical that this past not be purchased and subverted by the interests of the industry. At one time, I worried that serving as an expert witness might be perceived as compromising the integrity and persuasiveness of this book. I have put this concern to rest. Historians are hardly exempt from the common duty to contribute to public life and civil society. It seems to me now, after the hopes and disappointments of the courtroom battle, that we have a role to play in determining the future of the tobacco pandemic. If we occasionally cross the boundary between analysis and advocacy, so be it. The stakes are high, and there is much work yet to do.

  REFERENCES

  Introduction

  1 Douglas Martin, “Douglas Leigh, the Man Who Lit Up Broadway, Dies at 92,” New York Times, December 16, 1999; Dudley Dalton, “Big Electric Signs Costly to Erect,” New York Times, June 30, 1963; and Douglas Leigh, “Times Square Camel Billboard Contract,” October 8, 1953, Bates No. 500161833/1837, http://legacy.library.ucsf.edu/tid/hbr31d00.

  2 Doug Stewa
rt, “Times Square Reborn,” Smithsonian, February 1998, 34-45.

  3 Natalie Jaffe, “Billboard Gives Up Smoking Camels,” New York Times, January 4, 1966.

  4 According to Gallup polls, 45 percent of American adults smoked in 1954, 40 percent in 1963, 42 percent in 1971, and 43 percent in 1973. Rick Blizzard, U. S. Smoking Habits Have Come a Long Way, Baby, October 19, 2004, http://www.galluppoll.com.

  5 See Ronald Bayer and James Colgrove, “Children and Bystanders First: The Ethics and Politics of Tobacco Control in the United States,” in Unfiltered: Conflicts over Tobacco Policy and Public Health, eds. Eric A. Feldman and Ronald Bayer (Cambridge, MA: Harvard University Press, 2004), 8-37.

  6 U.S. Department of Health and Human Services, Reducing the Health Consequences of Smoking: 25 Years of Progress: A Report of the Surgeon General (Rockville, MD: Public Health Service, Centers for Disease Control, 1989), i.

  7 C. A. Tucker, “Presentation to RJR B of D—9/30/74: Marketing Plans,” September 30, 1974, Document ID 50142 1310 at the Mangini v. RJR case, Exhibit 1, UCSF archives, http://galen.library.ucsf.edu/tobacco/mangini.

  8 Seth Moskowitz to R. Sanders, C. Pennell, and H. MacFarlane, “Times Square Camel Billboard Publicity Proposal,” March 22, 1989, Bates No. 506867504/7508, http://legacy.library.ucsf.edu/tid/hvf44d00.

  9 “Camel Times Square Billboard Fact Sheet,” Bates No. 507090288, http://legacy.library.ucsf.edu/tid/tfj34d00.

  10 Federal Trade Commission, Complaint in the Matter of R.J. Reynolds Tobacco Company. Washington, DC, 1997, http://www.ftc.gov/os/1997/05/d9285cmp.pdf; and “Old Joe Must Go,” Advertising Age, January 13, 1992, 16.

  11 Joseph R. DiFranza et al., “RJR Nabisco’s Cartoon Camel Promotes Camel Cigarettes to Children,” JAMA 266, no. 22 (1991): 3149-3153.

  12 Paul M. Fischer, Meyer P. Schwartz, Jr., John W. Richards, Adam O. Goldstein, and Tina H. Rojas, “Brand Logo Recognition by Children Aged 3 to 6 Years: Mickey Mouse and Old Joe the Camel,” JAMA 266, no. 22 (1991): 3145-3148; “Camels for Kids,” Time, December 23, 1991; Kathleen Deveny, “Joe Camel Is Also Pied Piper, Research Finds,” Wall Street Journal, December 11, 1991; Walecia Konrad, “I’d Toddle a Mile for a Camel,” Business Week, December 23, 1991; and “Camels That Kill,” New York Times, January 15, 1991.

  13 “Joe Camel Billboard Ends Broadway Run,” August 12, 1994; and Peggy Carter, “Camel Times Square Billboard: Response to New York Times,” August 11, 1994, Bates No. 512724244/ 4245, http://legacy.library.ucsf.edu/tid/cje33d00.

  14 “Hooked on Tobacco: The Teen Epidemic,” Consumer Reports, March 1995, 144.

  15 Barry Meier, “Lost Horizons: The Billboard Prepares to Give Up Smoking,” New York Times, April 19, 1999.

  16 The Mangini case was among a group of cases in the early 1990s in which the tobacco industry lost or settled for the first time.

  17 Dennis L. Breo, “Kicking Butts—AMA, Joe Camel, and the ‘Black-Flag’ War on Tobacco,” JAMA 270, no.16 (1993): 1962.

  18 David Margolick, “At the Bar: Joe Camel Takes His Lumps at the Hands of a California Lawyer,” New York Times, June 17, 1994.

  19 Jim Doyle, “Joe Camel Is History in California: Tobacco Firm Settles Suit—S.F. to Share in $10 Million,” San Francisco Chronicle, September 9, 1997.

  20 Robert N. Proctor, “Tobacco and the Global Lung Cancer Epidemic,” Nature Reviews Cancer, no. 1 (2001): 82-88; and World Health Organization, The Tobacco Atlas (Geneva: WHO, 2002).

  Chapter 1

  1 William K. Boyd, The Story of Durham (Durham, NC: Duke University Press, 1925), 76.

  2 Oscar Wilde, The Picture of Dorian Gray (London: Ward, Lock, 1891).

  3 Johannes Wilbert, “Tobacco and Shamanism in South America,” in Psychoactive Plants of the World, eds. Richard Evans Schultes and Robert F. Raffauf (New Haven, CT: Yale University Press, 1987), 1-19; and Jordan Goodman, Tobacco in History: The Cultures of Dependence (New York: Routledge, 1993), 3-5.

  4 Goodman, 25. Experiential assessment of tobacco’s use must be historically and contextually specific, but this should not deny the physiological characteristics of use.

  5 Wilbert, 16-19.

  6 Ibid.

  7 Ibid., 133.

  8 Wilhelm Heinrich Posselt and C. L. Reimann, “Chemische Untersuchungen Des Tabaks Und Darstellung Des Eigentümlichen Princeps Dieser Planze,” Magazin für Pharmazie und die dahin einschlagenden Wissenschaften 24-25 (1828-1829); and Goodman.

  9 Goodman, 167.

  10 Ibid., 51-55.

  11 Alfred W. Crosby, The Columbian Exchange: Biological and Cultural Consequences of 1492, vol. 2 (Westport, CT: Greenwood Publishing, 1972), 66, 68.

  12 Allan Kulikoff, Tobacco and Slaves: The Development of Southern Cultures in the Chesapeake, 1680-1800 (Chapel Hill: University of North Carolina Press, 1986); and Edmund S. Morgan, American Slavery, American Freedom: The Ordeal of Colonial Virginia (New York: W. W. Norton, 1975).

  13 King James I, Counterblaste to Tobacco (London: Robert Barker, 1604).

  14 Goodman, 60.

  15 Other European countries also consumed tobacco in large volume, following distinct consumption patterns (Goodman, 61-67).

  16 On colonial tobacco agriculture, I have relied on T. H. Breen, Tobacco Culture: The Mentality of the Great Tidewater Planters on the Eve of Revolution (Princeton, NJ: Princeton University Press, 1985). See also Fernando Ortiz, Cuban Counterpoint: Tobacco and Sugar (New York: Knopf, 1947).

  17 As T. H. Breen explained: “And it was precisely because tobacco mattered in Virginia society so very much that it became in the eye of major producers a measure of self, a source of meaningful social identity, as well as a means to maintain a high standard of living” (71).

  18 Ibid., 46-53.

  19 Ibid.

  20 Ibid., 21-23, 41; and Rhys Isaac, The Transformation of Virginia, 1740-1790 (Chapel Hill: University of North Carolina Press, 1982).

  21 Edmund S. Morgan, American Slavery, American Freedom: The Ordeal of Colonial Virginia (New York: W. W. Norton, 1975), 110.

  22 Ibid., 114.

  23 Gloria L. Main, Tobacco Colony: Life in Early Maryland, 1650-1720 (Princeton, NJ: Princeton University Press, 1982), 9.

  24 Kulikoff, 40.

  25 Breen, 27, 32.

  26 Morgan.

  27 Robert Sobel, They Satisfy: The Cigarette in American Life (Garden City, NY: Anchor Books, 1978), 15-16.

  28 Goodman, 195; Sobel; and Robert K. Heimann, Tobacco and Americans (New York: McGraw-Hill, 1960), 131-133, 169-173, 272-273.

  29 John van Willigen and Susan C. Eastwood, Tobacco Culture: Farming Kentucky’s Burley Belt (Lexington: University Press of Kentucky, 1998), 12.

  30 Nannie M. Tilley, The Bright-Tobacco Industry, 1860-1929 (Chapel Hill: University of North Carolina Press, 1948), 64.

  31 Goodman, 98-99; and B. C. Akehurst and Edward M. Brecher, Licit and Illicit Drugs (Boston: Little, Brown, 1972), 277.

  32 Charles Dickens, American Notes and Pictures from Italy (London: Chapman & Hall, 1874), 130-131; Heimann, 117-119; Iain Gately, Tobacco: A Cultural History of How an Exotic Plant Seduced Civilization (New York: Grove Press, 2001), 173-176.

  33 G. Cabrera Infante, Holy Smoke (New York: Harper & Row, 1985); Morton Keller, The Art and Politics of Thomas Nast (New York: Oxford University Press, 1968).

  34 Sobel, 19; Heimann, 203-211.

  35 Sobel, 19.

  36 Cassandra Tate, Cigarette Wars: The Triumph of “ The Little White Slaver” (New York: Oxford University Press, 1999), 7.

  37 Robert Franklin Durden, The Dukes of Durham, 1865-1929 (Durham, NC: Duke University Press, 1975).

  38 Roberts, 259, 260.

  39 Tate, 15.

  40 Richard B. Tennant, The American Cigarette Industry (New Haven, CT: Yale University Press, 1950), 17-18. Bonsack initially failed to receive a patent. Albert Hook from Rochester, New York, a competitor, had already received a patent for a similar, if inferior, machine in 1876, and Charles and William Emery, principals of Goodwin & Company from
New York, patented another prototype in 1879. In 1880, Bonsack’s father arranged to purchase Hook’s original patent, clearing the way for his son’s successful application. In September, the Bonsack Cigarette Making Machine received its much coveted registration from the U.S. Patent Office. A year later, the younger Bonsack was still working to improve his machine, updating the patent. See B. W. C. Roberts and Richard F. Knapp, “Paving the Way for the Tobacco Trust: From Hand Rolling to Mechanized Cigarette Production by W. Duke, Sons and Company,” North Carolina Historical Review 69 (1992): 268-269.

  41 Brooke Hindle, Emulation and Invention (New York: New York University Press, 1981).

  42 Tennant, 18.

  43 Roberts, 271.

  44 Ibid., 272.

  45 Heimann, 213.

  46 Patrick Reynolds and Tom Shachtman, The Gilded Leaf: Triumph, Tragedy, and Tobacco: Three Generations of the R. J. Reynolds Family and Fortune (Boston: Little, Brown, 1989), 37.

  47 David F. Noble, America by Design: Science, Technology, and the Rise of Corporate Capitalism (New York: Knopf, 1977), 87.

  48 Durden, 42.

  49 “The Plight of the Cigar,” Current Opinion (1924): 98-99. In a 1924 opinion piece, it was noted that “for the last dozen years, unnoticed by the general public, the cigar has been falling into comparative disuse.” Noting that ten cigarettes were produced for every cigar, the author went on to mention, “The triumph of the cigarette over the cigar has been the triumph of machinery over handicraft.” On the larger social process of modernization, see Richard D. Brown, Modernization: The Transformation of American Life, 1600-1865 (New York: Hill & Wang, 1976).

  50 E. H. Mathewson, The Culture of Flue-Cured Tobacco (Washington, DC: U.S. Department of Agriculture, 1913).

  51 Sobel, 64-71.

  52 Thomas Park Hughes, American Genesis: A Century of Invention and Technological Enthusiasm, 1870-1970 (New York: Viking, 1989), 4.

  53 Thomas K. McGraw, “Rethinking the Trust Question,” in Regulation in Perspective: Historical Essays, ed. Thomas K. McGraw (Cambridge, MA: Harvard University Press, 1981), 1-55.