To Geoff, Frank and all on the thread, nice article for MO for a change from the Washington Post. A must read for all shareholders. It brings up some very compelling arguments and specifically how the congressional arms of federal and state governments are setting themselves up to be slammed by the Judiciary and how this is in fact already started to occur.
Warning: Zealotry May Be Hazardous
By Fred Barbash
Sunday, April 19, 1998; Page C01
Question: What's the difference between a talking lizard and a camel?
Answer: One will live and the other must die. The reason: The lizard
represents alcohol, specifically Budweiser. The camel is an advertising icon
for cigarettes.
Is that because smoking kills but alcohol doesn't? No, they both kill, but the
anti-smoking lobby is stronger and smarter than the anti-alcohol lobby. Big
Health is getting its way with Big Tobacco. And if you are smart, you will
get out of its way, because the anti-smokers are in a take-no-prisoners
mood. After years of frustration and lost battles, they've got tobacco on the
run.
The strength of the coalition against tobacco is one of the great political
phenomenons of our era. Mobilization against a single target by a president,
the Congress, 40 state attorneys general, many state legislatures, the
YMCA, the YWCA, the Sierra Club, much of organized religion, organized
education, organized medicine and a lot of trial lawyers, among others, may
be a first in peacetime.
But the wartime fervor with which the anti-smoking movement pursues its
aims, its deployment of extreme measures, including punitive legislation and a
carpet bombing of lawsuits, concerns me -- especially because I have seen
no evidence that heavy blunt instruments are the best way to deal with
complicated public health problems, such as addiction.
By now you're wondering if I smoke. I do. But I am not anti anti-smoking. I
am grateful that the movement has made it impossible for me to smoke in
my office and in restaurants. These restrictions have cut my consumption
dramatically. Having started at age 12 and watched family members suffer
from smoking-related cancers, I certainly don't want my children taking up
the habit. I have no love for tobacco companies, who have made money off
me from a product I wish I didn't use. Smoking is a terrible thing. Smoking
stinks. But in its pursuit of Big Tobacco, Big Health is taking on a certain
odor, too. To be blunt, I smell fanaticism.
All democracies need zealots. They sometimes bring us to terms with
realities we would sooner ignore and useful solutions we would sooner avoid.
But the combination of zealotry and power -- a confederacy of zealots -- is
another matter. Extreme measures, once legitimized in law, can be used by
others, for other purposes. You may like them when you approve of the
target, but you will surely hate them when you don't. (Those in favor of
abortion rights ought to worry, about which more later.)
Last week, for example, the Maryland legislature decided that the state
needed some help in its lawsuit against the tobacco industry. So, with the
case already in progress, the legislature changed the rules of the game. It
barred a legal defense that the industry has used successfully in other
lawsuits and in the early rounds of the Maryland suit (that smokers were
aware of the danger) and gave the state attorney general the legal right to
use a specific statistical technique to argue its case.
Do we really want legislatures to intervene this way? Would you approve if
you had filed a medical malpractice suit, based on current law, and the
legislature suddenly came in and gave the doctor or the hospital a new
weapon? (Some of the lawsuits are illegitimate on the merits and exist only
to drain the companies. U.S. District Judge Kenneth L. Ryskamp declared
Wednesday, as he dismissed one case in Florida that "the tobacco industry
has, of late, become the whipping boy of American political discourse. The
fact that the tobacco industry has recently become very unpopular, however,
is insufficient ground for this court to overturn well-established common-law
rules.")
Consider Speaker of the House Newt Gingrich's boast that "we'll tax the hell
out of" the tobacco companies. What if Gingrich was talking about, say, your
all-terrain vehicle (energy conservation) or your beach house (environmental
degradation), your diet (too much fat) or your video rentals (too violent, too
sexy)?
Consider an organization calling itself the Florida Pilot Program on Tobacco
Control, which put out a list of anti-tobacco "demands" on a poster picturing
a youth in what appears to be an Irish Republican Army-type balaclava (or
is it a Batman costume?) surrounded by teenagers: "Today, supporters of
tobacco become our target," the poster trumpets, indicting "distributors,
advertising agencies, the media that accept tobacco advertising and the
movies that glamorize it."
"We're truth," these teenagers proclaim.
No, I want to say, you're scary.
So was the man who ran in front of me a few weekends ago at a CVS in
Northwest Washington when I was buying a pack of cigarettes. The man
declared himself part of a group fed up with "neighborhood stores selling
cigarettes," shrieked at the unfortunate sales clerk, flung a printed brochure
at her and said he'd be back.
All of this comes, of course, as Congress considers perhaps the most purely
punitive piece of legislation in history -- legislation with a multibillion-dollar
price tag for millions of Americans, more restrictions on freedom of speech
in advertising for the tobacco companies and authority for the Food and
Drug Administration (FDA) to impose a ban on nicotine, which would in
effect be a ban on smoking.
In the end, banning is what this is all about, no matter what the movement
claims now. Indeed, the closest analogy in memory to the anti-smoking
movement may be the movement to ban abortion. Members of both use the
language of war-crimes tribunals in describing their opponents. ("They have
knowingly peddled a killer product," said Maryland Attorney General J.
Joseph Curran when he filed suit against the industry. "Now we will take
them to a courthouse to seek justice for their deceitful conduct.") Both the
antiabortion and the anti-smoking crusades are premised on the conviction
that killers are on the loose, an essential justification for their extreme
measures.
Both would like to persuade people to give up the activity but have failed.
Unable to simply ban the targeted menace, they have looked for back-door
methods to force people into compliance -- regulations, blacklists of
co-conspirators to be pressured and boycotted, and restrictions on
advertising.
The use of the courts, and the federal and state apparatus of taxing and
spending, have been common weapons, albeit differently employed. The
antiabortion groups have tried, with considerable success, to deny tax money
to "abortionists" through iterations of the Hyde Amendment, which restricts
use of Medicaid funds. The anti-smoking lobby has tried more direct
approaches: File so many lawsuits on behalf of so many plaintiffs that even if
they lose most of them, the cost of defense and the bad publicity will put the
enemy in the corner. Once they're there, use the taxing power to punish the
tobacco companies (and smokers) for the lies they told while defending
themselves.
Finally, both the antiabortion people and the anti-tobacco movements have
dealt with complicated questions of individual liberty in a similar fashion.
Since Americans tend to believe in choice, these movements against choice
have turned for justification to "innocent victims" -- specifically, the unborn
and children, for whom there is no choice at all.
The coalition against smoking is strong but may not be strong enough to
prevent itself from falling apart. As is often true of movements that include
absolutists, it is fracturing into the merely pure and the purer-than-thou. For
the latter, the legislation worked out between Big Tobacco and Big Health
isn't strong enough. They believe a $5 billion cap on annual payments for
lawsuits is a form of immunity.
The merely pure think this is the best they can do, that without the tobacco
industry's voluntary submission, restrictions on advertising will be found
unconstitutional.
I fear the precedent of the anti-smoking remedies now before the Congress.
What will they be used for next? Perhaps fat. Excuse me, Big Fat. As I
understand it, fat, when used as intended, causes heart disease, which
actually kills more people each year than smoking. And have you seen any
of those chocolate ads, the ones targeting children, or the adult versions,
where a beautiful woman caresses a nougat bar with her moist, alluring lips?
Consider that there are no warnings on boxes of high-fat cake about the
hazards to our health, no restrictions on purchases of bacon by people under
26 and, to my knowledge, no lawsuits. How about a fat tax?
I'll admit there are some differences. The body needs some fat. And so far,
fat has not been declared addictive, chocolate addicts notwithstanding. But it
is a food, falling under the jurisdiction of the FDA, and therefore
automatically qualifies for regulation. If you think an anti-tobacco-style
attack on fat is far-fetched, consider that, before he resigned, former FDA
Commissioner David Kessler had already targeted Big Fat, starting with
labeling requirements to make sure it was properly exposed on the content
labels.
You think I'm going too far? Read the wording of some of the anti-tobacco
bills and you'll appreciate that going too far is the name of their game.
Defenders of today's anti-tobacco tactics can argue that the problem is so
serious, the enemy so powerful, that extreme action is surely justified in
response. But that old refrain -- extremism in pursuit of vice -- is still crazy,
after all these years.
Fred Barbash is deputy editor of Outlook.
c Copyright 1998 The Washington Post Company
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