Op-Ed Articles

Don´t Hand Victory to Tobacco Companies
April 21, 1997 | The Los Angeles Times

By Henry A. Waxman

Cigarettes: Take immunity from future liability out of settlement talks.

The tobacco companies always have an end game.

For decades, the industry strategy was to deny everything and create uncertainty, about tobacco's deadly effects and the addictiveness of nicotine. It was a spectacular success: Millions of kids were hooked and became lifetime customers and the industry made billions of dollars in profits.

Three years ago the industry began to sense new problems. The combination of the public release of previously secret documents and the undeniable image of the seven tobacco chief executives testifying -- many say lying -- to Congress brought the prospect of long-postponed accountability to the industry.

I believed then it was inevitable that industry would seek shelter in the ultimate protection government can provide: immunity. What's surprising to me now is that many are taking that indefensible position seriously -- and that the industry offers so little in return.

The industry is facing regulations by the Food and Drug Administration that crack down on tobacco use by kids, an industry defector in Liggett and a barrage of state and private lawsuits that could result in incalculable financial liability.

But in a brilliant maneuver that would transform defeat into an unthinkable victory, the tobacco companies have put their own demands on the table. In effect, the companies are willing to curtail their efforts to sell cigarettes to our children only on the condition that they receive absolute legal immunity for the deaths tobacco causes. In addition, they insist that the FDA be blocked from regulating nicotine or requiring the companies to make safer cigarettes.

This is a Faustian bargain. We don't pay polluters not to pollute, we don't pay drug dealers not to sell drugs, and we shouldn't have to offer immunity and regulatory relief to tobacco companies to get them to stop addicting our children.

Tobacco use will kill about 25 million Americans alive today. Under the proposed settlement, the tobacco industry would be required to pay a pittance -- less than $15,000 -- for each of these deaths. What's more, the companies would be free to find new ways to market cigarettes to kids, to continue to use nicotine to addict new smokers and to pass on the financial costs of the settlements to their future victims by raising the price of cigarettes.

The companies know this is unprecedented. Never before has a manufacturer of consumer products been given blanket immunity from future liabilities. Never before has a manufacturer of an inherently, dangerous product been exempted from future regulations that could make the product safer.

Before Congress even considers such a measure. it must thoroughly understand the public policy implications. Ten or 20 years from now, what will the public have gained from immunizing the tobacco companies from future liability and product regulation? I have great faith in the current FDA regulations. but they don't give the tobacco industry any incentive to stop finding loopholes through which their products can be marketed to kids. We could end up with an emboldened tobacco industry that preys on our children free from all threat of liability.

We can be sure that the companies have carefully evaluated these and a score of other important factors and incorporated them into their negotiating position. It's equally clear that no one in government has even begun to grapple with them.

A better approach in dealing with the tobacco industry is to take immunity off the table. We should first resolve other issues -- starting with our kids -- before contemplating any immunity.

President Clinton deserves enormous credit for his courage in dealing with the tobacco industry. His work shouldn't be undone by a hasty deal that would give the industry its biggest victory ever.