Ashes to Ashes (125 page)

Threatened with a huge publicity triumph by its arch enemy, the antismoking movement belatedly tried to frustrate it. The problem was not to appear unpatriotic while denouncing the Philip Morris tour as a cynical public-relations stunt. The “antis,” as the industry called its foes, networked frantically through Pertschuk’s Advocacy Institute to organize a national protest, with the help of the company’s tour itinerary, which allowed the timely staging of counter-events. Thus, the night before the Philip Morris entourage arrived in Albany, New York, the antis stole its thunder with a candlelight vigil lamenting the lethal nature of the sponsor’s core product, and while they were at pains not to discourage the public from viewing the Bill of Rights, the diversionary purpose behind the tour was duly noted. A leaflet entitled
The Philip Morris Bill of Wrongs
denounced what it characterized as the company’s efforts to squelch others’ First Amendment rights, such as a suit brought against Alan Blum’s DOC claiming copyright infringement for selling T-shirts imprinted “Killer Time—We’re Having a Party,” satirizing “Miller Time” ads, and the barring of Olympic diving champion and ex-smoker Greg Louganis from the companyfunded
U.S. Olympic training center at Philip Morris’s Mission Viejo real estate development, because he had served as an antismoking spokesman for the American Cancer Society.

The antismoking movement’s most effective device to undermine the company tour was a fifteen-foot-high replica of the Statue of Liberty, fashioned by the Washington state chapter of DOC. The statue, christened Nicotina, held up a lit cigarette in her right hand instead of the torch of liberty; chained to her left arm was a pack of cigarettes. Embedded in the pedestal, a cluster of Philip Morris brand cigarettes, butts, and ashtrays, was a digital counter tracking the number of smoking-related deaths that had, according to Public Health Service data, occurred since the Bill of Rights tour began. The company was not amused. Despite efforts to have her shunted from view, as at the Kansas state-house grounds, where legislators apparently unfamiliar with the First Amendment tried to have Nicotina banned as an unpatriotic form of protest, the statue got hauled all over the nation by one antismoking group after another and often found its way into the press coverage of the company exhibit. By the end of the tour in the spring of 1991, Nicotina had tolled 521,558 American deaths attributed to smoking.

No one could say whether Philip Morris, for its investment in the Bill of Rights ploy, put at between $30 million and $50 million, had gained more celebrity than notoriety. What was known was that more than 4 million copies of the Bill of Rights were sent out under the company’s letterhead.

Melancholy Rose

ALTHOUGH
forces hostile to the tobacco industry grew as the ’Eighties unfolded, the cigarette makers had suffered little damage to their pocket-books. True, U.S. unit sales kept sliding, but the market had proven well able to absorb steady price rises to compensate, and foreign sales were advancing smartly. In 1983, though, the industry’s worst nightmare threatened to become a reality—a carefully mounted lawsuit by a smoker claiming damages due to the manufacturers’ alleged failure to have dealt in a timely and forthright fashion with the question of how gravely smoking cigarettes imperiled human health.

For three decades, as medical evidence gathered on that topic, company lawyers had stood vigil against such assaults on the industry’s bulging cash register from aggrieved claimants with little to lose and an available attorney willing to represent them on a contingency-fee basis. Not a cent in damages was surrendered by cigarette manufacturers. And their legal position appeared to be strengthened even as the consumer protection movement helped liberalize product liability law and encourage claims against negligent manufacturers. But since such negligence was often difficult and costly to prove, the doctrine of comparative fault had spread, abetted by another new legal concept: strict liability. As posited in the nationally authoritative American Law Institute’s
Restatement of Torts
and examined by the profession over the first half of the ’Sixties, strict liability had shifted the law’s attention from the conduct of the contending parties—
i.e.
, what did each know and what was their resulting responsibility for any harm caused by the product?—to the nature of
the product itself. Some products were unavoidably dangerous, like sharp tools, tall stepladders, and medicines with strong side effects, but some were said to be “unreasonably” so on the ground that the risks accompanying their use were greater than their utility. Legal sages wrote at length on how to apply this risk/utility test to a given product. But the
Restatement
, in its often invoked “Comment i,” called for denying an award for damages when the danger of a product “is contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics … .” Cigarettes were explicitly cited in this hallowed text as an example of such an exempted product, even if they ultimately ravaged their users. In effect, the legal profession’s philosophers were saying that cigarettes posed so notorious a health risk that their very danger protected them from liability claims by the forewarned consumer; tobacco manufacturers could not be expected to serve as perpetual health insurers for customers who fell ill.

This apparent reward for constituting a flagrant health hazard was reinforced by Congress in passing the 1966 cigarette labeling law. The single nationwide warning on all packs (and five years later in all advertisements as well) was designed to prevent chaos in the marketing of cigarettes and did not, on its face, seem to strike at the continued vitality of state common-law provisions for liability actions in which smokers could claim before juries that cigarette makers had injured them. The 1970 revision of the labeling act, however, in wording hardly contested by public-health advocates, barred not only all other warnings but any requirements or prohibitions with regard to smoking and health in the advertising and promotion of cigarettes “imposed by State law.” Tobacco lawyers would insist that Congress was implicitly preempting all forms of state law, whether statutory, administrative, or common-law doctrine evolved from court filings, and whether enforced by injunctions, fines, or the award of damages. But were damages truly a form of state regulation if awarded because juries felt that claimants had not been adequately informed of the risks of smoking? If so, Congress would seem to have frustrated all hope of recovery by aggrieved smokers who had fallen ill from the habit after the warnings were mandated and thus handed the tobacco companies an impenetrable shield against liability, of a sort granted no other industry—odd public policy indeed, considering that no other industry’s product was accused of taking so heavy a toll on human life.

Because the federal warning labels were not affixed until the late ’Sixties, claimants were of course free to sue cigarette companies on the ground of negligence for failure to warn before then. But only two dozen suits were brought during the 1970s, with only one reaching a jury—and again the industry prevailed. Legal scholars and public-health advocates were meanwhile developing a counterargument to the contention that universal knowledge of the hazards of smoking precluded liability suits. Could it be fairly said, they asked,
that smokers who were felled by their habit had made an informed choice to take it up when (1) most did so in their callow youth, (2) most became compulsive users because of the undisclosed addicting power of nicotine, and (3) most were confirmed in their dependency by the industry’s massive advertising and promotion, which glamorized the product, dismissed or minimized the health charges brought against it, and otherwise acted to subvert the force of the federal warning label? Perhaps the congressional warning was adequate to immunize the tobacco companies, allowing them to stand mute, to say no more about the risks their product entailed—taking the Fifth Amendment, as it were, against self-impeachment. But the cigarette makers had not let it go at that. They had spoken out repeatedly to reassure the public by stating their disbelief that smoking cigarettes was harmful, by associating them in their advertisements with a vigorous and pain-free lifestyle, and by insisting that the health consequences of smoking were being vigorously explored by industry-financed research, the results of which would be fully disclosed if they proved germane. Suppose, though, that the manufacturers knew that their product was extremely hazardous, but nevertheless kept saying otherwise to their customers—or were in fact not researching the matter purposefully and objectively, and were even suppressing findings in order not to scare off smokers? Surely, these legal commentators suggested, Congress could not have intended to confer upon the tobacco manufacturers the right to say anything at all about their product to lull or mislead the public. If the industry elected to speak out on the health issue, even if not required to, thanks to the labeling laws, surely it was obliged to tell the truth or face the consequences from suits for fraud, negligence, and intentional tort. The
Restatements
Comment i, moreover, exempting cigarettes from liability claims, was merely prescriptive and lacked the force of law; it remained for individual jurisdictions to determine what constituted an “unreasonably dangerous” product and the communitywide state of awareness of that peril.

This skeptical view of the legal invulnerability of the cigarette companies was bitingly rendered by a University of Houston law professor, A. A. White, writing the lead article in his school’s May 1972 law review under the title “The Intentional Exploitation of Man’s Known Weaknesses.” Ever since the 1964 report to the Surgeon General, White argued, “only the obstinately blind or the willfully ignorant” could remain in doubt about the lethal nature of smoking, and thus it was proper for the law to look not only to the conduct of the presumably forewarned consumer but also to that of the manufacturers who had “aggressively promoted the use of this dangerous product … deliberately and continuously over the years despite … possession of overwhelming evidence that faceless tens of thousands would die annually from the captive use of their product.” The congressional warning, furthermore, was inadequate on its face, falling “far short of conveying to the user the total relevant facts,”
while the industry’s advertising constituted a fraud or at most a half-truth, never hinting at the tragic effects of cigarettes and pandering to the natural rebelliousness of youth in its “period of adventurous indiscretion.” Since the tobacco manufacturers knew the high danger of smoking, their conduct “is callous as well as willful and wanton,” so why should they alone among U.S. industrialists be declared free to take the lives of their customers? They ought, instead, White concluded, to be subject to damages as a cost of doing business until they halted their deceptive practices and made a genuinely less lethal product, if possible—or go out of business.

A decade would pass before American case law caught up with Professor White’s juridical indignation and those who shared it. A robust and expanding application of tortious liability was brought to bear, meanwhile, on defective product design and failures to warn adequately, as juries returned hefty and in some cases angrily punitive damages. Nowhere was this tendency more advanced than in New Jersey, where that state’s supreme court held in its 1982 ruling on
Beshada
v.
Johns-Manville
that liability could be found even if the full risk to health was unknown, or claimed to be so, by the manufacturer. Cigarette makers had long argued that causation had not been proven in the relationship of smoking to disease, but, as announced in
Beshada
, the law no longer required 100 percent certainty and held instead that the duty to warn arose when information became available “from which a reasonable inference might be drawn that there is a likelihood the product carries with it some type of
potential
hazard. … ” The following year, in
O’Brien
v.
Muskin
, the New Jersey high court dramatically extended the scope of the state’s product liability law in a case where the plaintiff asked for damages after diving into an aboveground swimming pool and injuring his head when his hands slid on the slippery vinyl pool liner. The court held that even though the plaintiff could not point to an alternative safer liner material or better design for the pool, a jury could find the product to be unreasonably dangerous—even if not defective—and to have failed the risk/utility test, given the marginal nature of swimming pools among life’s necessities. The manufacturer would thus have to be willing to shoulder the burden of liability damages or quit the swimming-pool business. Particularly relevant to cigarette smoking was the added holding in
O’Brien
that in such cases of unreasonably dangerous but not defectively made products—and contrary to Comment i in the
Restatement of Torts
—manufacturers could not insulate themselves from liability claims “merely by placing warnings on their products … [and] regardless of the number of people those products maim or kill.”