Smoke but No Fire

A tobacco decision makes an important symbolic statement, but it won't prevent smoking deaths.

August 19, 2006 - Washington Post

THIS WEEK'S opinion by U.S. District Judge Gladys Kessler in the government's long-standing racketeering lawsuit against the tobacco industry is moving and powerful. It is exhaustive in scope, detailed and utterly convincing that the industry sought for five decades to mislead the American people and government concerning the deadly consequences of smoking. The opinion, however, in all likelihood will have only the most modest effect on the smoking health hazard. Under an earlier appeals court ruling, Judge Kessler could not order the disgorgement of industry profits, and she believed herself unable to order the industry to fund a massive anti-smoking campaign. So despite documenting in many hundreds of pages decades of industry misdeeds, Judge Kessler was able to order only fairly anemic remedies: getting rid of "low tar" and "light" marketing and requiring advertising to correct for past deceptions. Her opinion is important as a kind of official legal recognition of what this industry has done. But it will not solve the problem of tobacco.

Judge Kessler, to her credit, freely admits as much. "One cannot help wondering whether this litigation was the best vehicle for attempting to hold Defendants accountable for their indifference to the health of American citizens," she wrote in a footnote regarding the government's massive, seven-year court battle. "In a democracy, it is the body elected by the people, namely Congress, that should step up to the plate and address national issues with such enormous economic, public health, commercial, and social ramifications."

Indeed, the tobacco litigation -- for all its high-profile twists and turns -- has always been something of a sideshow. If the government really wanted to reduce what Judge Kessler aptly termed the "staggering number of deaths per year, [the] immeasurable amount of human suffering and economic loss, and [the] profound burden on our national health care system" caused by smoking, the courtroom was never the right forum. The right approach was and remains for Congress to give the Food and Drug Administration regulatory authority over tobacco.

The chief problem with the tobacco industry, after all, is not that it has violated racketeering laws. It is that the industry manufactures a legal product of exceptional lethality that remains unregulated in all key respects. The kind of changes needed in this industry go far beyond what any court could realistically order: a comprehensive regulatory system that gives federal authorities control over ingredients, levels of addictive nicotine, and marketing.

Legislation to do just this has inexcusably languished for years -- in large measure because the same Bush administration that purports to favor civil justice reform in general paradoxically preferred litigation to making responsible regulatory policy in this case. The litigation has yielded -- as most observers predicted--a symbolic statement and minor changes that will not save many lives. The political branches could do so much more, if only they would act responsibly.

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