Tobacco Litigation and the YouthAbstractOver the yearsthe tobacco industry has faced a number of controversies.
Even though it hasbeen accused of everything short of murder it has managed to survive andthrive. Yet, the trend is changing the consumers are no longer to sit back andsign their death warrants and those of their children as they inhale the deadlysmoke that emerges from the manufacturer product. They are fighting back andthe law is backing them all the way. (Pierce JP et al 1991)Introduction.
The business ofmaking tobacco products has come into the limelight as the conspiracy theoriesof the industry are being revealed. Through the litigation being carried outagainst them, it has been seen that the industry players are an oligopoly in afree market and are against the consumer. They have no values for the rights ofthe consumers and are working for sheer profit. They have together created thetrend of suppressing the development of less hazardous cigarettes so that thereare no ways for comparison against the more harmful cigarettes.
The reason forthis is simple. The industry is one that is dependent on its product. If onecompany accuses another of making a product that is harmful or addictive theother companies will follow suit and if this happens the consumer would have tosit up and listen. They would then realize that all is not rosy and the messagebeing given to them that smoking is something done by successful, healthy,young, smiling people with very white teeth is wrong.
(Herbert B. 1998)False AdvertisingThe tobaccoindustry is facing charges of false advertising. For years the firms havetargeted the audience making false claims—in spite of knowing the harm thatthe product causes. With the emergence of the global market the consumers havegotten smarter and realize that the tobacco companies have been giving them thewrong information regarding the marketing of their product. (New York Times;October 11, 1998.
)Consider thestatements being made by the representatives of the tobacco companies thatsmoking is harmless. In 1994, the CEO’s of seven tobacco companies testified,under oath, that nicotine is not addictive. And yet, the tobacco companies havelong known that nicotine is addictive. One industry document from 1963 says, . .
. nicotine is addictive. We are . . . in the business of selling nicotine,an addictive drug.
” (http://www. womenof. com/Articles/le030298. asp)Similarly thetobacco industry has known that smoking causes cancer and yet, they have madepublic claims that have stated that they do not have conclusive proof of thefact. Yet, in theirown files, the tobacco companies had plenty of proof that smoking cigarettesdoes cause cancer.
A 1961 confidential memorandum, for example, describescigarette tobacco as:1. Cancercausing; 2. Cancerpromoting; 3. Poisonous;and 4.
Stimulating,pleasurable, and flavorful. Adolescent SmokingWhat has reallycreated the fervor against the tobacco industry is the realization that theyare targeting our future and crippling it. It is targeting the youth. Accordingto a U. S. Surgeon General’s Report, every day 3,000 children become smokers.
Ofthose 3,000 kids, 1,000 will die prematurely because of their tobacco habit. Tobacco use among minors has risen dramatically in recent years, despite thefact that it remains illegal for minors to purchase tobacco. Every year,425,000 Americans die from smokinga habit most of them began as teenagers. Toput that number in perspective, think about the Vietnam Veterans Memorial.
That’s seven times the number of names on the Vietnam wall. (http://www. womenof. com/Articles/le030298. asp)The fact is thatsmoking for youth fewer than eighteen years of age is considered illegal andyet, companies still cater to the kids breaking the law—time and time again.
Joe Camel is although it’s not the only one is one of advertising aimeddirectly, and successfully, at kids. According tofiles from the tobacco industry polls were analyzed regarding the best mannerin which to sell cigarettes to kids from the age of 14-18. Kids were encouragedto shoplift to get cigarettes so that in the future they would become goodcustomers. Philip Morris’sMarlboro, became the dominant brand by the early 1970s on the strength of itsappeal to young baby boomers. Documents show that every manufacturer sought toreplicate that success. “Today’s teenager is tomorrow’s potential regularcustomer, and the overwhelming majority of smokers first begin to smoke whilein their teens,” noted a 1981 Philip Morris corporate memo.
“At leastpart of the success of Marlboro Red during its most rapid growth period wasbecause it became the brand of choice among teenagers who then stuck with it asthey grew older. ” The document defined teenagers as those 12 to 19 yearsold. (Fromson 1998)Litigation CausesIn lieu of thefacts that have been realized through some of the litigation cases the Congressbegan to consider forming a National Legislation that would allow all tobaccolawsuits to be settled. The reason for the legislation would be simple. Whilethe tobacco companies right to sell to adults would be predetermined—it wouldnot have the right to market to the youth. This would be done through providingthe public accurate information and considering the adults as having the rightto make an informed choice.
The nationallegislation would then be in a position to make an effort so that thegovernment would make youth stop smoking. The national legislation would allow the nation to realizethe effects of tobacco on the children and be more appropriate than the statestrying to fight against the uncertain suits arising throughout its tenure. Thenational legislation would balance regulatory power between the states andfederal agencies. (Skretny MT, et al 1990)State of Colorado vs. the Tobacco Companies 1997The State ofColorado filed suit against tobacco companies because the industry over theyears has targeted youth with their products and has discounted the notion thattobacco was addictive. As a result, state Medicaid funds have been consumed atan alarming rate to address the health problems incurred by those who smoke.
This settlement holds the tobacco industry liable for smoking-related illnessesand awards damages accordingly. The settlementreached between the five largest tobacco companies and attorneys general from46 states, four territories and the District of Columbia will total $206billion over 25 years. Colorado will receive nearly $2. 7 billion over thatperiod. Colorado’s initial share is expected to be almost $33 million, with thestate receiving roughly $100 million per year under the terms of thesettlement. However, the final amount is based on several factors of whichinflation and tobacco consumption are major variables.
A studyconducted by the University of California at Berkeley found that medical billsfrom tobacco-related illnesses total a staggering $72 billion in the U. S. eachyear. These expenses are truly outrageous and Colorado should use its share ofthe tobacco settlement to improve the health of Coloradans and prevent the highmedical bills associated with this deadly habit. Gale Norton Statement”I am a proponent of personal responsibility forone’s actions. The history of the war on drugs demonstrates the difficulty ofregulating Americans’ use of substances.
With 48 million Americans addicted tonicotine, I believe there is little chance of developing a public consensus atleast in the next 10- 15 years favoring tobacco prohibition, much lessovercoming the practical problems of administering a worthwhile enforcementprogram. Given these views, I was a tough sell on the idea that litigationagainst the tobacco industry was justified. However, as part of my duties to the Peopleof Colorado, my staff and I reviewed thousands of pages of documents revealingthe behaviors of the tobacco industry over several decades. After careful andthoughtful analysis, I concluded that the behaviors of the industry inmarketing to and encouraging the use of tobacco products by kids,misrepresenting the health effects of their products, and conspiring to keepsafer products off the market were illegal under well-established Colorado law. Given these violations of Colorado law, I filed suit.
We sought civilpenalties, treble damages, and disgorgement of illegal profits, as well asinjunctions against future illegal conduct. I believe that Colorado has a solid case,and we are prepared to litigate. Nevertheless, I strongly support thesettlement agreement because I believe it provides a means to establish aconsistent and orderly resolution of the tobacco industry issues for the entirenation. It is clearly preferable to lengthy and uncertain litigation which mayresult in different results and regulation in each of the states. Thisagreement represents a compromise, which though not perfect, achieves as muchor more than litigation ever could, and provides a balance of regulatory powerbetween the states and federal agencies.
Criticism of the settlement has tended tofocus on whether it went far enough in punishing the tobacco companies. Whilethe settlement reflects a hard-fought compromise, some of the public debatereflects the best in Monday-morning quarterbacking. For example, if youthsmoking reduction goals are not met, the settlement would impose the largestpenalty ever paid by any industry. This penalty accomplishes the objective ofreorienting the incentives for the industry: giving them a financial stake inpreventing underage smoking. This allows us to work with the industry to combatteen smoking. It allows us to use the manufacturers’ influence over theirdistributors and retailers to create a true change in industry mindset.
(Norton Congressional Testimony 1997)Texas vs. Tobacco firms The tobaccoindustry agreed to pay a record $14. 5billion to settle a lawsuit filed by the state of Texas, representing thelatest in a series of concessions by the beleaguered industry. (Torri andConnolly 1998)Under the termsof the settlement, private lawyers representing the state will walk with nearly$2. 2 billion.
The Texas lawsuit was one of 41 filed by state attorneys generalseeking billions of dollars to compensate states for the costs of treating sicksmokers through Medicaid programs. Under thepotential agreement, the state would receive an up-front payment of more than$1 billion and the remainder over 25 years. The industry would also fund amultimillion-dollar campaign aimed at stopping underage smoking, according to asource familiar with the talks. Along with a banon tobacco billboards, provisions of the Texas settlement include eliminationof cigarette vending machines from any place accessible to teenagers and theremoval of tobacco advertising from sports arenas, buses and trains, accordingto the Los Angeles Times. AnalysisSince the hugesettlement against the tobacco countries and the states in 1998 it would behoped that the incidence of youth smoking would be reduced. But such is not thecase.
According to studies being conducted there are a large number ofadvertising magazines that are being read by teenagers that feature cigaretteads and actually since 1998, when they agreed in a court settlement they wouldnot target youths in their ads, the tobacco industries have actually increasedtargeting youth! (King C. 1998)State officialswho participated in the $206 billion settlement said the findings show tobaccocompanies may be violating settlement terms. Attorneys general from around thecountry are now in the “discovery’ ‘ phase of an investigation into cigaretteadvertising placements, according to Washington Attorney General ChristineGregoire. Cigarette makers said the studies were misleading.
One of the studieswas by the Massachusetts Department of Public Health and the American LegacyFoundation, a nonprofit group funded by the settlement, completed the other. “There’snothing that a tobacco company can do that won’t receive criticism from thespecial interest groups that have their own political agenda,” said MarkSmith, a spokesman for the Kentucky-based Brown and Williamson TobaccoCorporation. The 1998agreement settled lawsuits against cigarette manufacturers brought by 46 statesto recover the costs of treating sick smokers. One section of the settlementforbids tobacco companies from “targeting’ ‘ people younger than 18 in theiradvertising, marketing and promotions. The Massachusetts study comparedcigarette advertising expenditures in magazines before and after thesettlement, focusing on 19 popular magazines with more than 15 percent of theirreadership between the ages of 12 and 17.
Fifteen percent was the level used bythe Food and Drug Administration in its efforts to regulate tobacco. Magazinesin that category include Rolling Stone, Glamour and Sports Illustrated. In thefirst nine months of 1999, cigarette makers spent $119. 9 million advertising,much of it on brands most popular with young smokers, in magazines with asignificant percentage of teen readers, the study found. That is almost $30million more than was spent in the same magazines in the corresponding periodbefore the settlement, the study said. Thus, the stateattorneys general have begun to conduct investigations to find wheater thetobacco companies have violated the 1998 national settlement by advertising toyoung people.
Based on language in the settlement prohibiting tobacco companypractices that “target youth,” the tobacco enforcement committee ofthe National Association of Attorneys General is collecting evidence about whatcigarette companies are advertising, and where they are advertising it. Attorney GeneralChristine Gregoire of Washington state, an author of the 46-state tobaccoagreement, said the four-month-old investigation could trigger lawsuits againstthe industry if the group determines the tobacco ads are designed to lureteenagers. “We have tried to reach an agreement with the industry on thisissue but have been unable to,” Gregoire said. PresidentClinton had urged the attorneys general to “take immediate and appropriateenforcement action to stop these practices. ” Yet, its been two years sinceand little headway has been made. Industryofficials say they are abiding by the agreement and have discontinuedadvertising in magazines they believe appeal to young people.
But there isdisagreement over how to determine exactly which magazines meet that criterion. A spokesman for Philip Morris Cos. said that his company will propose that”an independent, accurate third-party methodology” be established fordetermining youth readership of magazines and be used as a standard for tobaccoadvertising. As part of the 1998 tobacco settlement, tobacco companies agreedto stop advertising on billboards and to avoid the “Joe Camel” typeof ads that many believed appealed primarily to young people. In addition, muchof the industry pledged to follow proposed Food and Drug Administrationguidelines that placed magazines with youth readership of more than 15 percentoff limits to cigarette ads. (Pierce JP 1998)”When today’s tobacco executives ask the public tobelieve that they are no longer targeting our children, they deserve the sametrust as their predecessors when they swore under oath before Congress thattheir products are not addictive,” said Matthew Myers, president of theCampaign for Tobacco-Free Kids, after the studies were released.
Tobaccocompanies increased magazine advertising after their use of billboards wasprohibited. The companies also had to defend their markets in the face of sharpcigarette price increases that were imposed to cover the costs of their $206billion national settlement with the states. (Adelson A. 1997)ArgumentThe litigation against the tobacco countries has beenfocusing on the youth and yet, it has managed to increase the sales. The reasonfor this lies in human psychology. Over the years the tobacco industries havetargeted the youth but all the time sent the message that smoking is a maturething that is done by the adults.
It is like dangling a carrot in front of thekids. (Washington Post news service November 9, 1997. )The youth in their attempt to compete against the adultshave begun to go for the forbidden fruit. By stating that cigarettes are anadults choice they are forcing the adolescents to rebel and show those aroundthem that they too are adults and have the right to make their own choices. Thus, the case is playing right into the hands of the tobacco companies andhanding them on a silver platter what they have been for years striving toattain.
As Goodman(1996) wrote in her article The youth turf is in fact the tobacco companies’briar patch. They love it there. In mid-May, when Philip Morris tried its endrun around government proposals on marketing to kids, a spokesman said with astraight face, `The time has come to address the issue of underage use oftobacco. ” That was just the latest in a long line of helpful hints on`underage smoking.
” Since 1979, the tobacco folks have recycled wholeseries of `tobacco education messages” that describe smoking as `one ofthe many activities some people choose to do as adults,” such as `voting,driving a car, drinking alcoholic beverages, marriage and havingchildren. ” There you go. Linkingcigarettes with driving, drinking and sex. What a turnoff!Thefact is that the only way to prevent the youth from smoking is by banning it tothe whole society. At the moment the youth are merely being tempted to do whathas been forbidden and the increase in smoking statistics is proving the fact. Adolescent smoking is not the result of youthful experimentation with aforbidden fruit, but has become in actuality the result of a deliberatepsychological assault by the tobacco industry and in order to counter thestrategy it must be fully comprehendedand combated.
ConclusionInvestor Thomas A. Russo, a partner at Gardner Investmentsin Lancaster, Pa. , who holds shares in Philip Morris for clients, said,”What makes Marlboro such a remarkable consumer product is that its marketshare among 20-year-olds is as high as its share among 40-year-olds and60-year-olds. “Today,Marlboro accounts for 75 percent of Philip Morris’s domestic tobacco profits,according to analyst Black, and has nearly half of the U.
S. market forfull-price cigarettes, which also explains why the company’s profit margins arethe highest in the business. (Boston Globe October 13, 1998. )Thelitigation cases rampant around the nation are witness to the fact that theconsumers have finally become educated to the fact that smoking is injurious tohealth—not only as a label but as a fact. However, the tactic the states haveadapted to fight against the industries is wrong.
The youth are increasinglyfavoring tobacco in different forms and the litigation cases banning youthsmoking are to vague to actually succeed. The case in advertising—where thetobacco companies still advertises is magazines is a fact to the case. Thus,unless tobacco industries are completely banned youth smoking willincrease—steadily and fatally. (Center for Substance Abuse PreventionJanuary/February 1995, p38-41.
)References1. The Future of Tobacco Litigation and Policy by GaleNorton, Attorney General of Colorado available at http://www. womenof. com/Articles/le030298. asp2.
TOBACCOSETTLEMENT:GALE A. NORTON (Congressional Testimony); 11-13-1997 STATE OFCOLORADO DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL HOUSE COMMERCECOMMITTEE GALE A. NORTON ATTORNEY GENERAL OF COLORADO November 13, 19973. EllenGoodman / Boston Globe, Youth anti-smoking campaign is tobacco firms’ briarpatch.
, The Dallas Morning News, 06-09-1996, pp 7J. 4. Centerfor Substance Abuse Prevention. Growing Up Tobacco Free.
Prevention Pipeline,Center for Substance Abuse Prevention January/February 1995, p38-41. 5. Editorial. The surge in teen smoking. New York Times; October 11, 1998.
6. Editorial. Joe Camel’s children Boston Globe October 13, 1998. 7. HerbertB.
Pursuing children. OpED New YorkTimes; May 3, 1998. 8. PierceJP et al Does tobacco advertising target young people to start smoking?Evidence from California .
JAMA 1991;266:3154-3158. 9. KingC. et al Adolescent exposure to cigarette advertising in magazines JAMA1998;279:516-522010.
PierceJP et al Tobacco industry promotion of cigarettes and adolescent smoking JAMA 1998;279:511-515. 11. HoppockKC, Houston TP. Availability of tobacco products to minors.
J Fam Pract. 1990;30:174-176. 12. SkretnyMT, Cummings M, Sciandra R, Marshall J. An intervention to reduce the sale ofcigarettes to minors.
N Y State J Med. 1990; 90:54-55. 13. AdelsonA. Is anybody getting the picture: despite ads, teen-age smoking is unabatedNew York Times July 17, 1997.
14. Mixedresults seen in costly efforts on youth tobacco use Washington Post newsservice November 9, 1997. 15. Slugfest in the Smoke Ring By Brett D. FromsonWashington Post Staff Writer Sunday, March 1, 1998; Page H01 available at http://www. washingtonpost.
com/wp-srv/national/longterm/tobacco/stories/slugfest. htm16. TobaccoFirms Set to Pay Texas $14.5 Billion By Saundra Torry and Ceci ConnollyWashington Post Staff Writers Friday, January 16, 1998; Page A01 available athttp://www.washingtonpost.com/wp-srv/national/longterm/tobacco/stories/texas.htm
