Two Steps Forward, One Step Back: The Tobacco Settlement Shuffle by Phillip Gardiner

While the Minnesota settlement represented a major advance for tobacco control, the demise of the McCain bill, the last iteration of the June 20th 1997 proposed national tobacco settlement, casts a spotlight on how much further tobacco control advocates must travel. Tobacco control forces are assessing the failure of the McCain bill, critically reviewing the new Attorneys General (AGs) proposed national settlement and determining where to go from here.

Where Are We Now?
We are without national tobacco control legislation. But some public health researchers think that this result was to be expected. In a recent article published in the Journal of the American Medical Association (JAMA), Robert Blendon and John Young of the Harvard School of Public Health found that the McCain bill didn't have the broad public support once anticipated. They report that no poll reviewed showed more than 60% support for the proposed tobacco deal. The authors state that the public voiced concerns about the size of the tax increase, growth of big government and the potential inability of legislation and price increases to reduce teen smoking. Even more telling, the authors report that in a review of 100 tobacco opinion surveys conducted from 1957-1998, on average, 72% of those interviewed felt that smokers should be held responsible for their health problems, not the tobacco companies.⁽¹⁾ It seems that the tobacco industry has been doing an excellent job getting their message and analysis out to the general public. The issues mentioned above are always trumpeted by the tobacco industry: it's the smoker or big government that's at fault, not big tobacco.

While national legislation may have failed, state settlements, especially the Minnesota case, have given tobacco control forces reason for optimism. Not only was the Minnesota settlement lucrative, it also contained many public health benefits, especially restrictions of tobacco advertising. Importantly, the powerful public health planks of the Minnesota settlement now apply to the earlier settlements reached in Mississippi, Florida and Texas.⁽²⁾ Some tobacco control advocates have suggested all along that tobacco control efforts, especially legislation, should be taken up at the local and state level, one case at a time. Dr. Stanton Glantz, University of California San Francisco Professor of Medicine, responding to questions in the Multinational Monitor, stated that "the proper strategy to take is to simply take these cases one at a time, and either take them to trial or settle them. If they settle, include a most-favored-nation clause and go around the country slowly ratcheting up the ante, with each AG told to get one thing more than the one before. The other benefit of this strategy is that it gives you an opportunity to learn from your mistakes. One of the problems with the national deal is that it was a one-shot blowout."⁽³⁾

Coupled with this state by state strategy will be the continuing fight to establish FDA jurisdiction over tobacco as a drug and cigarettes as a nicotine delivery system. A North Carolina District Court has ruled that the EPA's report on secondhand smoke as a carcinogen was flawed methodologically. This ruling has buoyed the tobacco industry. But tobacco control forces expect that this issue won't be resolved until the Supreme Court hears this case.

Stepping back and looking at the congressional quagmire tobacco control legislation fell into, a Washington Post editorial provided a refreshing bit of candor. The editors, commenting on the lack of meaningful legislation to come out of this Congress, especially their inability to pass comprehensive national tobacco control legislation, suggested: "Going home may be the most useful thing it has done all year."⁽⁴⁾