Judge Richard J. Leon ruled this week that graphic warnings on cigarette packs violate the First Amendment, because, essentially, they go too far in forcing tobacco companies to advertise something against their will that goes against their own self-interests (Basically, there is a judicial precedent that as part of the First Amendment you can’t be forced to say something you don’t want to say. The government can require written labels on cigarette packs, but graphic images go too far in provoking an emotional reaction against the tobacco companies’ own product, the judge ruled.)
“The government’s interest in advocating a message cannot and does not outweigh plaintiff’s First Amendment right to not be the government’s messenger,” Judge Leon wrote.
This is a bummer, but after the injunction, I wasn’t very optimistic. The Justice Department and Obama administration can appeal the decision (They’ve already appealed the injunction, which was imposed late last year. I guess that appeal is moot now). It would first go to a Circuit Court of Appeals, but I expect it would eventually go before the U.S. Supreme Court, and with the incredibly pro-corporate judges on the Supreme Court, I’m not optimistic this ruling would get overturned.
Again, a bummer. Most of the countries in the West require these graphic images on cigarette packs, but in the U.S., it appears the tobacco companies will squirm out of it. Unfortunately, for the moment, the First Amendment seems to be on the tobacco companies’ side.
I can’t wait to get my hands on a book coming out in February, written by a Stanford professor about the evils of the tobacco industry, called: “Golden Holocaust: Origins of the Cigarette Catastrophe and the Case for Abolition”
Ouch, but $44.95? I think I’ll wait to see if I can get a used copy.
In this book, Robert Proctor (I’ve seen his name around in a few articles I’ve read), takes on the tobacco industry and argues the industry is not dying, but people still are. Obviously, with the term “Holocaust” in the title, this book is no shrinking violet. I personally have called tobacco a “slow motion Holocaust,” having watched what it did to people in my mom and dad’s generation.
I’m quoting liberally from a Stanford University article, which you can read in full here:
One author calls it “a remarkable compendium of evil” while another reviewer says “unpacks the sad history of an industrial fraud. [Proctor’s] tightly reasoned exploration touches on all topics on which the tobacco makers lied repeatedly to Congress and the public.”
Sounds like the kind of thing that will get my rage on. It sounds like it pulls no punches.
Big Tobacco tried to stop the publication of the book, actually subpoenaing Proctor’s emails and his unfinished manuscript and costing him $50,000 in legal fees.
Two other powerful quotes from the book.
For the industry, though, the cigarette represents the perfect business model. “It costs a penny to make. Sell it for a dollar. It’s addictive,” says investment guru Warren Buffett.
Proctor notes that “by artfully crafting its physical character and chemistry, industry scientists have managed to create an optimally addictive drug delivery device, one that virtually sells itself.”
Proctor explores several tobacco myths in the book. Among them:
Myth #1.Nobody smokes anymore. If you read the media, smoking sounds like a dying habit in California. That’s far from true, said Proctor. Californians still smoke about 28 billion cigarettes per year, a per capita rate only slightly below the global average.
So why do we have this illusion? “We don’t count the people who don’t count. It’s not the educated or the rich who smoke anymore, it’s the poor,” said Proctor.
Myth #2. The tobacco industry has turned over a new leaf. “The fact is that the industry has never admitted they’ve lied to the public or marketed to children or manipulated the potency of their project to create and sustain addiction,” Proctor said. “A U.S. Federal Court in 2006 found the American companies in violation of RICO racketeering laws, and nothing has changed since then. And the same techniques used in the past in the U.S. are now being pushed onto vulnerable populations abroad.”
Myth #3.Everyone knows that smoking is bad for you. Proctor pointed out that most people begin smoking at the age of 12 or 13, or even younger in some parts of the world. “Do they know everything?” Proctor asked rhetorically. “And how many people know that cigarettes contain radioactive isotopes, or cyanide, or free-basing agents like ammonia, added to juice up the potency of nicotine?”
Myth #4.Smokers like smoking, and so should be free to do it. And the industry has a right to manufacture cigarettes, even if defective. Proctor called this “the libertarian argument.”
“It is wrong to think about tobacco as a struggle between liberty and longevity; that tips the scales in favor of the industry. People will always choose liberty, as in ‘Give me liberty or give me death.’ What people don’t realize is that most smokers dislike the fact they smoke, and wish they could quit. Cigarettes are actually destroyers of freedom.”
There are tobacco industry documents, he noted, in which smoking is compared not to drinking but rather to being an alcoholic.
Myth #5. The tobacco industry is here to stay. Global tobacco use would be declining were it not for China, where 40 percent of the world’s cigarettes are made and smoked. Proctor has a bet with a colleague, though, that China will be among the first to bar the sale of cigarettes, once their financial costs are recognized.
Anyway, sounds like a heavy read and a real unapologetic voice of anti-tobacco advocacy. Can’t wait.
Philip Morris got its ass handed to it by the Oregon Supreme Court, which shockingly (to me, because the good guys rarely win these cases, at least completely win) upheld a jury award to the widow of a smoker killed by lung cancer. The Supreme Court ruled that Philip Morris must pay another $99 million to the widow of Jesse Williams, Mayola Williams. The original decision was made by a jury way back in 1999, but then got appealed and appealed all the way to the U.S. Supreme Court. The U.S. Supreme Court upheld a punitive damage of $79.5 million, but kicked part of the case back to the Oregon Supreme Court. That figure is now up to $99 million in part due to interest. OK, I know what you’re thinking — $99 million is nothing to a multi-billion dollar company like Philip Morris. True. But ask yourself why the hell would Philip Morris fight this for 12 years and spend millions on legal fees? Because the tobacco industry is TERRIFIED of legal precedent. Philip Morris was essentially fighting the dollar amount. The tobacco company had already paid millions to the widow. The widow and the state of Oregon, prosecuting the case, reached an interesting settlement. If they won before the Oregon Supreme, the state would receive $55 million to go toward its crime victim’s fund (which makes sense, since what the tobacco companies do is a crime), while Ms. Williams would receive $45 million (somehow, that adds up to $99 million). Philip Morris had an interesting argument. The company contended that Oregon had already signed off on its right to the money because in 1998 – one year before the jury’s verdict – the state agreed not to pursue any more claims for injuries from tobacco exposure in the massive 1998 Master Settlement Agreement. The clause was part of a settlement brokered with Philip Morris, other tobacco companies and 46 states for the billions of dollars the states had paid and would continue to pay for health care for ailing, low-income smokers. Under that deal, the tobacco companies agreed to pay Oregon $2.1 billion during the first 25 years and then about $81 million a year in perpetuity. But attorneys for Oregon and Ms. Williams argued that state was simply trying to collect on the 60 percent due to it under the state’s punitive-damages law, separate from the 1998 MSA. The Supreme Court agreed. No word if Philip Morris will appeal, but I suspect it will.
Herman Cain on Sunday defended his smoking campaign ad, by saying “we weren’t trying to make smoking look cool. Mark Block smokes.”
Cain defended the ad, saying it was not meant to send a broader message that smoking is acceptable. “Mark Block smokes. That’s all that ad says,” Cain said. “We weren’t trying to say it’s cool to smoke.”
“One of the things within this campaign is let Herman be Herman,” Cain said. “Mark Block is a smoker, and we say let Mark be Mark. That’s all were trying to say because we believe let people be people.”
On the ad released last week, Block praises Cain and states, “America’s never seen a candidate like Herman Cain.” Then with the music “I am America” playing in the background, Block smokes a cigarette and blows smoke into the camera.
The best part is his interviewer, Bob Schieffer, host of CBS’s “Face the Nation,’’ ripped into Cain for the ad.
Schieffer, a bladder cancer survivor, lit into Cain on his show. “It’s not funny to me,” Schieffer said. “I had cancer that was smoking related, and I don’t think it serves the country well — and this is an editorial opinion here — to be showing someone smoking a cigarette.”
Awesome, Bob!
Oh, by the way, Herman Cain took thousands of dollars from Big Tobacco lobbying against smoking bans when he was head of the National Restaurant Association.
Compared to the sexual harassment scandal dogging Cain, this is pretty minor, but I still can’t help shaking my head at this bizarre ad.
By the way, this Colbert bit on the Herman Cain smoking ad is FREAKING hiliarious!
This is really bizarre. It’s an ad from Herman Cain’s campaign manager. It’s a pretty direct matter-of-fact personal testimony from the guy about why he likes Herman Cain … and then at the very end, they show him smoking a cigarette and blowing smoke right into the camera.
Bizarre. It’s like an old cigarette ad. I think it’s just a clumsy ad. They probably just told him, “act natural,” while they continued filming him, so he lit up a cigarette and smoked it.
I think…
… then again, Herman Cain does have a long, illustrious history of being a tobacco industry stooge. While he was a lobbyist for the National Restaurant Association, he apparently took a shitload of money from Big Tobacco as he lobbied against smoking bans in restaurants. More on that in this New York Times article. Maybe it was a secret product placement for his tobacco buddies. Probably not…
… but then again, you never know.
What is funny is the reaction to the video, no one could tell whether or not it was REAL! It reminded me of these three videos, one of which pretty Haruko dug up.
You tell me which ones are real and which ones are fake:
Thank you, Haruko, I have WANTED to find this one, but you did for me
OK, if Herman Cain’s pathological bigotry toward Muslims and his borderline Uncle Ruckus “Blacks have been brainwashed into voting for Democrats” schtick wasn’t enough reason to hate him, now there is this.
(Thanks to Sandy at Current for cluing me in on this, BTW.)
In the 1990s, when Herman Cain, owner of Godfather’s Pizza, was a lobbyist for the restaurant industry, he partnered with RJ Reynolds and Philip Morris to oppose smoking bans for restaurants. Cain helped lobby against local and state smoking bans on behalf of the tobacco giants. Why? Whoooooaaaa, Nelly! Here we go! A letter from Herman Cain to SAFE — the Save American Free Enterprise fund, a tobacco industry front group at the time:
On behalf of National Restaurant Association and the
Save American Free Enterprise (SAFE) fund, I want
thank you for RJ Reynolds Tobacco Company’s generous
contribution to the SAFE fund.
As you know, the purpose of the SAFE fund is to provide
financial support to state restaurant associations in
their efforts to defeat anti-business ballot initiatives,
along with pro-actively promoting free enterprise
through federal and state legislation .
Rob, as we head into a new millenium, it will take
courage and leadership from industry leaders like you if
we are to Save American Free Enterprise .
Again, many thanks for your ongoing support and
participation with the National Restaurant Association.
Sincerely,
Herman Cain
What a fucking weasel. We are talking about smoking bans in … FAMILY RESTAURANTS … where children eat. It’s bad enough for employees to breath secondhand smoke for 40 hours a week, but they were fighting bans around kids.
Wow, just when you think a guy couldn’t be a bigger douchebag (and really, after Cain’s cracks about Muslims and towns should be able to ban mosques, he’s pretty damn high on the douchebag scale.), Cain takes it one step higher.
File this one under, “you have to be absolutely shitting me.”
Five Big Tobacco companies, led by (cue shock) R.J. Reynolds, the sleaziest of the sleaze Big Tobacco companies, filed suit against the Food and Drug Administration over graphic warning labels being required by the agency.
Get this, the complaint claims the labels would make their customers, i.e., smokers, “depressed, discouraged and afraid” to buy their products.
Oy.
That’s the FUCKING point! To DISCOURAGE and make people AFRAID to use the product.
Arrrrrggghhhhhhh!!!!!!!! Must …. avoid … kicking …. cat…..
These warning labels are all part of legislation signed into law in 2009 that gave the FDA regulatory authority over Big Tobacco. These same kinds of graphic warnings have been implemented in Great Britain, Canada and Australia (and they’ve been controversial in those places, as well.)
Altria, i.e. Philip Morris, as usual likes to play nice and has not joined this litigation. With 60 percent of the cigarette market cornered, Philip Morris doesn’t need to jump into these frivolous suits (and Philip Morris actually helped write that 2009 law to begin with, which is weird, because if their competitors can no longer advertise, they can cling on to that 60 percent market share much more easily.).
These images, which will be unveiled a year from now, include sickly children, people dying of cancer and diseased gums and lungs. These kinds of images have been on cigarette packs in Commonwealth countries for a few months now.
It all began in 1994. Years of outrage over decades of Big Tobacco’s lies finally seemed to be coming to fruition. 1994 was the year it seemed like we finally turned a corner in the fight against Big Tobacco.
The early 90s was pretty much the height of the lung cancer epidemic. Ever since then, lung cancer rates overall have been slowly dropping, especially among men. It was also the height of “Joe Camel,” a wildly successful marketing campaign by RJ Reynolds that appealed to beginning smokers (i.e., teenagers). What was really alarming people at the time was that the teenage smoking rate had been steadily decreasing until the mid- to late-80s. Then, shockingly, the teen smoking rate started going up, and going up markedly. Why? Joe Camel. Tobacco paying millions every year to insert “cool” smoking scenes in PG and PG-13 movies. They were finding a way to market to kids.
Congressman Harry Waxman held a famous series of Congressional hearings in 1994 in which the CEOs of the four major tobacco companies were subpoenaed to testify before Waxman’s committee about the cover-up and lies of Big Tobacco. All four CEOs — from RJ Reynolds, Phillip Morris, Brown & Williamson and Lollilard — steadfastly refused to budge an inch under withering questioning from Waxman and other congressmen that they knew cigarettes were addictive and were killing people. They all four claimed they did not believe this.
The public was outraged. It was a major public relations debacle for Big Tobacco. Within months, a perjury investigation was initiated by the Department of Justice. All four CEOs were eventually fired. Ultimately, the Department of Justice claimed it didn’t have enough evidence to prosecute for perjury because the four CEOs testified under oath they believed tobacco did not addict people nor cause cancer. They had crafted their answers very carefully, obviously with help from attorneys. Because they had used the word believe, they could not be prosecuted for perjury.
Then came the Global Settlement Agreement, which came oh, so close to passing. This was a settlement proposed between several plaintiffs and Big Tobacco to right at least some of the wrongs committed by Big Tobacco over the past century. This included payment of $365 billion to the states for their Medicaid costs caused by smoking. FDA would be given regulation over tobacco products, warning labels would be strengthened and all class-actions suits against Big Tobacco would be nullified.
This required an act of Congress (because of the FDA involvement), and Congress failed to pass the bill, which was carried by Sen. John McCain.
Out of the flames of that failure, came the the Master Settlement Agreement, which was announced in 1998, I cheered. Finally, Big Tobacco was being brought to its knees. It wasn’t as good as the GSA, but it still sounded good. Big Tobacco would be crushed by a $280 billion out-of-court settlement with 46 states … (give or take several billion depending on your accounting).
I continued to cheer it for at least five years … until I started finding out all that had been lost. All in all, this agreement was an abject failure on most levels, explained very well in Alan Brandt’s “The Cigarette Century.”
The Master Settlement Agreement is to this day the biggest court settlement ever reached in the history of litigation. Big Tobacco (RJ Reynolds, Phillip Morris, Lollilard and Brown & Williamson), was sued by the state of Mississippi in the early 1990s to reimburse the state for its Medicaid expenses caused by all the health problems caused by smoking. 40 other states joined the suit. Famed Mississippi attorney Dickey Scruggs took over the plaintiffs’ case, leading an army of lawyers against Big Tobacco.
The case had an interesting basis in law. The tobacco industry was adding untold billions to the Medicaid expenses of states dealing with the near-epidemic of health problems caused by cigarettes — lung cancer, heart disease, lung disease, etc. In the 70s and 80s, lung cancer especially hit a crescendo as all those heavy smokers who started smoking in the 1950s and 1960s (when the smoking rate was the highest) started getting lung cancer. The industry knew damn well that its product was making people sick, yet continued to sell it … and this was actually adding to taxpayers’ tax burdens.
All this information came out in a series of documents leaked over a period of years from various personal injury lawsuits against the tobacco industry. While few of these lawsuits succeeded (Most jury decisions for the plaintiffs were either overturned by higher courts or the damages greatly reduced), one good thing did come out of all this litigation. Discovery.
Big Tobacco spent millions on advertising cigarettes in movies
Through the discovery process, reams and reams of documents were released to the plaintiffs, who in turn made them available to the public, proving that the tobacco industry had known since the early 1950s that tobacco was giving people heart disease and lung cancer and that nicotine was physically addictive and that “light” cigarettes were not safer than “regular.” Documents were released showing that Big Tobacco executives did their damnedest to keep this information covered up, and to fabricate studies attempting to disprove that cigarettes were killing people. More documents also proved that the industry had been shamelessly marketing to “new smokers,” which is a Big Tobacco euphemism for “teenage smokers.”
With this reams upon reams of evidence now out in the public forum, Big Tobacco was forced to settle, or face constant lawsuits and judgments. However, the high-priced Big Tobacco lawyers completely outmaneuvered the state attorneys general in the settlement.
The biggest failure of the agreement? It was suggested in the agreement that a certain amount of the $280 billion go toward tobacco education and cessation programs. Everyone assumed it would. Everyone thought it was a MANDATE. It was never MANDATED however.
Anti-smoking programs did receive a lot of funding from the settlement for a few years, but it didn’t take states very long to figure out that the word “mandate” wasn’t in the settlement anywhere. Before long, state legislatures started diverted that money to balancing their general funds. Money for tobacco education dried up. Lazy state legislators got an easy source of money to balance their budget without raising property taxes. It turned into a huge windfall. Not only that, but states started selling bonds with the intention that they would be paid off by future tobacco settlement funds.
Instead of stamping out smoking, states had become utterly dependent upon tobacco. It wasn’t in the states’ interest to cut smoking rates.
There was one last chance to really nail the tobacco industry. A RICO racketeering lawsuit filed against Big Tobacco in the federal court by the Justice Department under Bill Clinton. They had a damn good case. Tobacco executives had conspired for years to cover up the addictiveness and deadliness of their product. They had conspired for years to cover up the fact that they were marketing their product to kids. They had lied that “light” cigarettes were safer.
The feds won their case in 2006, sort of. A federal judge issued a scathing ruling convicting Big Tobacco of racketeering under the RICO statutes. An appeals court upheld this decison. However, shockingly, the courts did not impose any financial penalties, saying the RICO statute did not allow this. Some argue that the Justice Department under Bush did not pursue the case as aggressively as it had been pursued under Clinton, and this was part of the reason for the mixed ruling. The case is still being appealed as the government is seeking more of a monetary punishment against Big Tobacco.
So, tobacco executive lost their jobs for lying to Congress, were investigated for perjury, but avoided an indictment. Big Tobacco was convicted by a federal judge of RICO racketeering, and that conviction was upheld by an appeals court, but no executives went to jail, nor was the industry even forced to pay penalties. A huge civil settlement with the states has simply turned into a windfall for state government.
Big Tobacco murdered people for decades. And murder is not too strong of a word for it. They knew since the early 1950s, maybe even earlier, that they had a product that was addicting people and was killing people. And they continued to sell it and market it, and then they marketed it to kids. And they covered up and lied. For decades. It’s amazing to me that not one person has ever spent a day in jail for it. And people are rotting in prison in Texas and Florida for selling pot.
They got away with it. The final chapter of Dr. Allan Brandt’s book, “The Tobacco Century,” is “The Crime of the Century.”
They murdered roughly 100 million people worldwide between 1950 and 2010, and by “murder,” I mean they knew full well they were killing people with their addictive product.
If you want to look at the glass half-full, a few good things did come out of the 1998 MSA:
* Joe Camel was retired for good. Big Tobacco is forbidden from marketing to kids again (no ads with cartoon characters). They have attempted to get around this provision several times.
* Payments to movie studios for product placement were forbidden. Weirdly enough, smoking scenes in movies after 1998 actually went up, not down. Big Tobacco insists they have nothing to do with this. It’s probably Hollywood’s continued love affair with the cigarette dating back to Casablanca. However, pressure has been put on Hollywood to cut gratuitous smoking scenes out of PG and G movies. That pressure seems to be working.
* The cost of cigarettes went up. To pay for the $280 billion settlement, the industry as expected raised their prices. Along with a number of states jacking up their cigarette taxes, in some cases dramatically, the price of cigarettes has skyrocketed in the past 10 years, helping to drive down the smoking rate.
* Spurred partly by outrage that sprang from Waxman’s hearings, more and more states and cities have passed smoking bans. Not only do smoking bans help drive down the smoking rate (because a lot of casual smokers only smoke in bars, and therefore, it gives them a good excuse to quit), they also protect nonsmokers from secondhand smoke.
* The FDA was given regulatory authority over tobacco in 2009. The first thing the agency did was ban candy-flavoured cigarettes, which are popular with kids.
* The smoking rate and teen smoking rate have declined since 1998, but not dramatically. The smoking rate was around 24-25 percent in 1998, and today it’s pretty much stuck at about 20 percent. The smoking rate for teens is a little harder to pin down, because few teens are what you would call “regular smokers,” but the percentage of teens who were smoking dropped from 28 percent in 2000 to 17 percent in 2010. However, that drop has stalled the last few years, probably because of the cut in tobacco education funding.
* Class-action suits against Big Tobacco have been halted, but individual lawsuits are still being allowed. In Florida, a Supreme Court decision there in 2006 allowed thousands of individual lawsuits to go forward against Big Tobacco for lying about the safety of “light cigarattes,” etc. So far, juries have awarded hundreds of millions of dollars for plaintiffs, with hundreds more suits in the works. None of those judgments have been paid out, however, as Big Tobacco is appealing all the verdicts. the industry will be dealing with these lawsuits for at least the next decade, maybe longer.
Not surprising since the same judge a few weeks ago slapped an injunction on these cigarette labels.
