Make Tobacco Companies Liable

To combat smoking, remove warning labels on packs

By Dr. Elizabeth M. Whelan

THE QUESTION of smoking and what to do about it has never had a higher profile - complete with presidential pronouncements, proposed government regulations, industry counter-offers, and a range of litigation. Unless we reassess our goals and embrace the only viable solution -that is, holding the cigarette industry legally responsible for the health consequences of smoking - the industry will prevail. More children will begin smoking (recent government figures indicate that one in three high-school students reports having smoked within the preceding month, a sharp increase from just five years ago), and the pandemic of tobacco-induced disease will dominate the health scene for the next century. Thus far, five ineffective measures have been proposed by the Clinton administration, by the industry, or both:

• Let the Food and Drug Administration regulate cigarettes. Putting aside the question of legal authority, how could the FDA regulate tobacco as a drug without banning it? Cigarettes are neither "safe" or "effective" - the two criteria the FDA uses for regulating drugs - for any medical purpose.
  
• Make the warning labels stronger. Would a side-of-the-pack warning that "one in three smokers will die prematurely" deter a curious fifteen year old from lighting up? Proposed regulations like this one explain why the industry appears unconcerned.
  
• Let the federal government regulate nicotine levels. Do the tobacco companies recognize that it is the nicotine in cigarettes that keeps the customers coming back? And do the companies manipulate nicotine levels? Yes - and of course they do. But banning nicotine in cigarettes would be tantamount to banning cigarettes altogether. And placing limits that would serve to reduce nicotine levels would only encourage smokers to inhale more deeply and light up more frequently to satisfy their cravings. Addiction would hardly be discouraged.
  
• Stop advertising to kids. Who is a child? Eighteen-year-olds are fair and legal game for cigarette advertisers, but how can you devise an ad aimed at 18-year-olds that does not create interest in 15- and 16-year-olds? When you come right down to it, the purpose of cigarette advertising is to attract new smokers - and children are the only prospective new smokers. The idea that we can target just those ads "aimed at kids" is ludicrous.
  
• Let the industry handle marketing its own way - responsibly, this an oxymoron. How do you responsibly market a product that prematurely kills 500,000 Americans each year. The only effective solution to dealing with cigarettes is to hold the industry and its business partners -suppliers, advertisers, publications accept ads, vendors and the like - responsible for the health consequences of cigarettes. In other words, treat them the way we treat any other American corporation. The way to accomplish this - as counterintuitive as it may at first seem - is to move the congressionally mandated warning labels from cigarettes and cigarette ads.
  

The warning labels, which the industry ushered through Congress in 1965, relieve cigarette companies of the burden of giving specific, detailed information about the hazards of their products. Further, the warning labels are the reason the cigarette companies have never successfully been sued. The threat of litigation is powerful incentive to any company to stay honest, to inform customers of the exact nature of the risks involved with its products and to update them on any new findings. Because of the warning labels and the resulting near-immunity from lawsuits, the cigarette industry has had no reason to act responsibly.

If the labels were to come off-a move that would require an act of Congress - cigarette manufactures would scramble to protect themselves by putting full and detailed labels on their products. There is no way they would recycle the existing labels since such labels are, by current liability standards, inadequate to meet the standards of full disclosure.

Without the protection afforded by today's warning labels, cigarette companies would likely withdraw advertising as we now know it, because the images are inconsistent with reality, and could be used against them in court. Publications, vendors and others would re-evaluate their potential liability in promoting the sale of such dangerous products. Indeed, cigarette companies might even try to protect themselves by requiring purchasers to sign "informed consent" forms.

All these changes would occur without government intervention (beyond the act of Congress needed to remove the warning labels) and would precipitate economic and social changes that would lead to a natural decrease in the number of smokers. Removal of the congressionally mandated dated warning labels is our last, best; hope - and it should be advanced by everyone who is interested in real solutions, not shams.
Reprinted by permission - Dr. Elizabeth M. Whelan is president of the American Council on Science and Health in New York.  

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