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

A Phoenix Rises From the Ashes?
Just when you think that national tobacco control legislation is dead, it reappears, albeit non-congressional and in a very different and disconcerting disguise. Currently, States Attorney's General (AGs) from California, Colorado, North Carolina, North Dakota, New York, Oklahoma, Pennsylvania, and Washington are negotiating with the tobacco industry to secure a $198 billion tobacco control settlement. If agreed upon, this settlement could affect 36 states and another 10 would receive monetary compensation only. But, while the McCain bill had serious shortcomings, the new proposal is even more problematic. Emboldened by the demise of the McCain bill, the tobacco industry has put forward a series of proposals that back away from some of the provisions of the McCain bill and many of the advances contained in the Minnesota settlement.

The current proposal under consideration would preempt local and state law suits against the tobacco industry and as presently crafted, gives only 1/3 the amount of money (per capita) than that received in the Minnesota settlement. Additionally, the new proposed settlement would protect the tobacco company's corporate parents in the case of bankruptcy, while at the same time not raising the price of cigarettes! Even the financial community and their analysts are acutely aware that an increase in tobacco prices will lower consumption. To add insult to injury, Bonnie Zoller, a tobacco industry analyst with the Credit Suisse First Boston Corporation, speaking to tobacco investors stated that: "A sharp increase in prices could cause a drop in consumption."⁽⁵⁾ It is incredulous that the current proposals the AGs are considering does not include price increases. This is not a minor point: raising cigarette and tobacco prices could reduce smoking and ergo the health and human costs associated with tobacco-related disease.

Probably the most disturbing part of the new proposed settlement is the virtual absence of public health restrictions on advertising and tobacco promotions. The new settlement allows for the continuation of the "Marlboro Man", other human images and animals in tobacco promotion and advertising. Moreover, the proposed settlement will allow tobacco companies to continue sponsoring at least one sporting event a year. Mary Aronson, of Aronson Washington Research, speaking in the New York Times, pointed out that many of the initial AGs that sought to negotiate a settlement with the tobacco industry were more concerned with public health issues compared to the AGs who are leading the negotiations now.⁽⁶⁾ Un-fortunately, California's lame duck AG, defeated gubernatorial candidate Dan Lungren,and his team of lawyers are at the forefront of the current negotiations, which are limiting the scope of public health provisions.

Some commentators have been quite harsh in their criticisms of the current proposed tobacco settlement. Gilbert L. Ross, M.D., Medical Director of the American Council on Science and Health, minced no words in his letter to the editor of the New York Times: "getting lots of money in the short term to appease the electorate is more important to the attorneys general of the eight states involved in the negotiations with the tobacco industry than actual concern for public health. It is inexcusable for these state officials to grovel at the feet of the tobacco lobby, sacrificing public-health goals and the health of our children for the sake of political expediency."⁽⁷⁾

As the haggling of the fine points of the settlement are wrestled out, people close to the negotiation expect that the new settlement won't be signed by the AGs and tobacco industry representatives until after the November elections. All and all, this latest version of the national tobacco settlement is a step backward from the McCain bill and a major retreat from the provisions contained in the Minnesota settlement.

Where Do We Go From Here?
With the Senate still hostile to tobacco control legislation, mid-term elections upcoming, and Washington generally consumed with the Clinton-Lewinsky affair, national legislation for tobacco control has taken a back seat. Moreover, with the generally conservative bent on the current AGs proposed settlement, national tobacco control is in jeopardy. Clearly, advocates for tobacco control will have to redouble their efforts and focus on local and statewide issues. When tobacco control forces take to the national legislative arena again, there will be valuable lessons garnered from this most recent, even though disappointing, experience.

Stanton Glantz has pointed to several lessons learned from the fight for national tobacco legislation. Glantz argues that since public health forces have limited resources and the tobacco industry has much more, they (the tobacco industry) were better able to control the national legislative stage; "the public health community [was] playing in the industry sandbox." On the other hand, " . . . if you are fighting at the community level, the resources that the anti-tobacco people can mobilize are usually enough to win . . . The industry has generally not done well at the community level, so that is the place to fight them." Even if national tobacco control comes to the fore again, Glantz argues that it still is very necessary to involve community groups in countering the tobacco industry.⁽³⁾

The continued attacks on California's no-smoking in bars policy, attempts to block the control of tobacco/nicotine by the FDA, vigorous appeals of most pending court cases, continued financing of politicians sympathetic to tobacco, and striving to get the AGs to accept big tobacco's money with as few public health provisions as possible - all of these tactics speaks volumes to a consistent strategy: accept only things beneficial to tobacco, all other things must be fought or bought off.