Smoke Gets In Your Eyes

Imagine that millions of Americans are addicted to a lethal drug. Imagine that the Food and Drug Administration has repeatedly ducked its responsibility by refusing to regulate that drug. And imagine that when the FDA finally does its duty, an appeals court decides that it cannot do so, that the drug is so dangerous that if the FDA regulated it, it would have to be banned.

Welcome to the topsy-turvy world of tobacco, where nothing much makes sense except the vast profits, where tobacco company executives slip-slide along the continuum from aggrieved innocence to heartfelt regret without breaking a sweat, and where the only people who seem to be able to shoot straight are the jurors who decide the ubiquitous lawsuits.

The most recent panel to do the right thing handed down a judgment of $145 billion on behalf of sick smokers in the state of Florida, the largest jury damage award in history. Lawyers for the tobacco companies thundered that the award would bankrupt them, yet the stock market scarcely shuddered. Experts said the amount would likely be reduced when cooler judicial heads prevailed.

The jurors--who gave up two years of their lives, listened to endless witnesses and yet were able to hammer the tobacco companies after deliberating only a few hours--could be forgiven if they felt they'd fallen down Alice's rabbit hole into Wonderland, where the Red Queen cries "Off with their heads" but no one is ever executed. Al Gore, for instance, inspired by the death of his own sister from lung cancer, insisted not long ago that he will do everything he can to keep cigarettes out of the hands of children. But he says he would never outlaw cigarettes because millions of people smoke. Here is a question: how many users mandate legality? What about the estimated 3.6 million chronic cocaine users, or the 2.4 million people who admit to shooting or snorting heroin?

I can almost feel all the smokers out there, tired of standing outside their office buildings puffing in the rain when once they could sit comfortably at their desks, jumping up and down and yelling, "Tobacco is different from illicit drugs!" Because it is legal? Now, there's a circular argument. A hundred years ago the sale of cigarettes was against the law in 14 states. The Supreme Court, which ruled earlier this year that the FDA did not have the power to regulate tobacco, upheld a Tennessee law forbidding the sale of cigarettes in 1900. The justices agreed with a state court that had concluded, "They possess no virtue but are inherently bad and bad only." At the time, Coca-Cola still contained cocaine and heroin was in cough syrups.

Since then the tables have turned. Tobacco companies spread political contributions around like weed killer on the lawn in summer, although they've passed from their bipartisan period into an era when they support largely complicit Republicans, who like free enterprise (and soft money) more than they hate emphysema. (George W. Bush responded to a question about the recent megasettlement by bemoaning a litigious nation.) Responsibility-minded Americans accept the argument that individuals have the right to poison themselves, although studies showing that the vast majority of smokers began as minors raise questions about informed consent. Official tobacco apologists spent years insisting their product did not cause cancer, then that it was not addictive. Now they've done a 180, arguing that since there is no such thing as a safecigarette, a government agency like the FDA, created to regulate the safety of products, cannot touch them.

If this sounds like having it both ways, that's because it is. Philip Morris masquerades as a corporate Robin Hood by making large contributions to nonprofit organizations, soup kitchens, ballet companies, museums and shelters, being a good citizen with the profits of a product that kills 400,000 people a year. And magazines, including this one, run articles about the dangers of cigarettes in the same issues that advertise them.

Even tobacco foes have fudged. When Dr. David Kessler ran the FDA, he publicly concluded what everyone already knew: that cigarettes are nothing more than a primitive delivery device for nicotine, a dangerous and addictive drug. But the agency never took the obvious next step. The Food, Drug, and Cosmetic Act forbids the sale of any drug that is not safe and effective, and part of the FDA's mandate is to regulate devices. Cigarettes are a device. The drug they deliver is patently unsafe. Ergo, cigarettes should be banned.

That's not going to happen in our lifetime, which is why even a more aggressive FDA refused to take this to the limit. Too many tobacco farmers, too many tobacco addicts; a right to a livelihood, a right to a lifestyle. (Both of these arguments hold for legalizing illicit drugs as well, but never mind.) "Prohibition" is a dirty word in America. But tobacco can in no way be compared to alcohol. Many people can and do drink safely and in moderation, while it is impossible to smoke without some pernicious health effects, and nearly all smokers can be described as addicts. But if cigarettes were outlawed, what to do with all those tobacco junkies? Nicotine clinics providing the patch, strong coffee and hypnotherapy?

Public-service announcements, catchy commercials for kids, settlements with the states to recover health-care costs: the tobacco companies, which once swore they were doing nothing wrong, are now willing to lose some ideological battles to win the war of the profit margin. One Philip Morris executive appearing at a recent conference even told Kessler, whose efforts to restrict sales and advertising aimed at children spawned a battle royal of billable hours, that he welcomed "serious regulation of the tobacco industry at the federal level." Now they tell us. Why shouldn't the Marlboro men play the angles? The public and the pols have provided them with so many angles to play. Here is the bottom line: cigarettes are the only legal product that, when used as directed, cause death. The rest is just a puppet show in the oncology wing.