Dear President Clinton:
The nation now has before it an unprecedented opportunity to enact strong
tobacco control legislation that will reduce smoking rates, promote
public
health and begin to hold the tobacco companies responsible for the
deadly
toll they have inflicted on the public.
Those goals cannot be achieved, however, if the progenitor of this
opportunity -- the civil justice system -- is compromised in the process.
The U.S. civil justice system not only enables victims of dangerous
products to receive compensation, it functions as a crucial public
health
tool. Resorts to the civil justice system have played an essential
role
against the tobacco industry in securing document disclosure, spurring
deterrence and, indirectly, generating media and Congressional attention,
building political momentum against corporate misconduct, spawning
criminal investigations and regulatory initiatives, and unleashing
civic
energies.
By first not explicitly opposing immunities for Big Tobacco, your
administration has failed to take a firm stand on this liability issue,
and is increasingly seen as signaling a willingness to deal parts of
the
civil justice system away.
This deal-making posture suggests insufficient appreciation of the vital
role of the civil justice system in promoting public health and assuring
access to justice for victims of dangerous products -- as well as a
serious disregard for the precedential importance to other harmful
industries of granting limits on liability to this, the worst of
industries.
On the heels of the release of the RJR papers, which conclusively showed
that R.J. Reynolds marketed cigarettes to children, new Minnesota
documents showing the industry doing market research on children as
young
as five, and Philip Morris papers showing the company placed its product
in Muppets' movies, how could you consider granting any special
protections to this mendacious and predatory tobacco industry?
And how could you consider conferring special protections on Big Tobacco
when Minnesota is apparently just days away from unlocking the vault
of
the industry's most carefully concealed documents? (See the attached
article from the Washington Post.) These documents promise to detail
industry misconduct in greater detail than ever before, and to shift
public and political sentiment even further against the industry.
Some have suggested it is appropriate to grant the industry liability
limits because tobacco company agreement is needed to enact marketing
restrictions. On principle, this contention should be dismissed
immediately. Is the U.S. government to bow to threats from tobacco
drug
dealers that it will continue to hook children unless given immunity
from
class action lawsuits, limits on punitive damage awards and other special
protections?
On closer inspection, the very logic of this last-ditch justification
for
such a deal collapses. The Administration has argued compellingly that
the
marketing restrictions in the FDA rule are constitutional, and the
proposed additional restrictions are likely constitutional. Even if
they
are not judged constitutional, tobacco company agreement not to challenge
them would be meaningless. Enforcement of such an agreement would
potentially suffer from multiple infirmities. For example, enforcement
may
be blocked under the doctrine of unconstitutional conditions (on the
grounds that the tobacco companies were forced to sacrifice their
purported constitutional rights in exchange for conferral of a benefit).
And even if the agreements could be enforced against the industry,
they
would be open to other challenges by billboard companies, retail outlets,
advertising companies and others. Tobacco company agreement or not,
there
will be no escape from judicial review.
Other proponents of liability limits assert that tobacco industry
agreement is necessary to achieve broad anti-tobacco legislation. This
position reflects a major misreading of the still-rising political
temperature on Capitol Hill. Big Tobacco's acquiescence is not required
for passage of tobacco control legislation; a united front by tobacco's
opponents could usher in comprehensive legislation without weakening
the
civil justice system.
If broad legislation cannot be achieved without compromising civil justice
exposure, then the cause of tobacco control and public health would
be
much better served by clean, focused tobacco legislation that preserves
civil justice accountabilities. A package of a tobacco tax increase,
affirmation of FDA authority over tobacco and international tobacco
control provisions (and a carefully worded provision that prohibits
tobacco companies from manipulating the bankruptcy process or otherwise
shielding their ample non-tobacco or foreign assets from attachment)
could
help achieve significant reductions in smoking rates, without sacrificing
the only tools that began putting the industry on the defensive and
are
building the momentum that Congress is responding to these days.
If the civil justice system is preserved and "comprehensive" legislation
is not passed, the tobacco control effort will not grind to a halt
after
this legislative session closes. The state cases against the industry
will
proceed, securing billions of dollars from the industry and leading
to the
implementation of new public health measures, as each state's public
health innovations automatically redound to the benefit of others which
included "most favored nation" clauses in prior settlement agreements
with
the industry. State legislatures will increasingly impose new tobacco
taxes and states and localities will adopt more smokefree regulations.
Private litigation of all sorts -- with the attendant discoveries and
disclosures -- will continue. Tobacco will become an issue in this
November's election. And when Congress reconvenes next year, with momentum
still strong against the industry, it may be able to consider additional
tobacco control measures.
A deal on liability limits as part of a "comprehensive" package, by
way of
contrast, will decompress the political climate, create a sense in
which
tobacco seems a "finished" issue and remove the litigation spur to
media,
public, legislative and regulatory focus on tobacco. The result will
be to
foreclose, or at least slow, future public health policy innovations.
The
history of efforts to tame Big Tobacco makes clear that this approach
should be avoided at all costs.
To ensure that the present opportunity yields an important public health
achievement, not a debacle that will hinder anti-tobacco control efforts
here and abroad long into the future, the White House should immediately
issue a public statement that it is unalterably opposed to granting
special protections to the tobacco industry.
Sincerely,
Ralph Nader
P.O. Box 19312
Washington, D.C. 20036
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