-Caveat Lector- from: http://www.zolatimes.com/V2.42/pageone.html <A HREF="http://www.zolatimes.com/V2.42/pageone.html">Laissez Faire City Times - Volume 2 Issue 42</A> The Laissez Faire City Times December 14, 1998 - Volume 2, Issue 42 Editor & Chief: Emile Zola ----- LIBERTARIAN'S WARNING Smoking Settlements Lead to Hypocrisy, Greed, and a Shortness of Liberty by Craig Goodrich In 1521, less than thirty years after Columbus' first voyage, a young officer arrived fresh from Spain to take command of the garrison on the Caribbean island of Borinquen. Like most fresh young officers throughout history, he was a great believer in discipline and in doing things strictly by the book, so he was scandalized to discover that his men had adopted the natives' practice of inhaling the smoke of burning tobacco leaves. He ordered that they stop at once. The next day his First Sergeant, as most First Sergeants throughout history have done, explained the facts of life to the new CO: the men couldn't stop, and he was risking mutiny unless the order was rescinded. Luckily the young officer relented, his men continued to smoke, and the fortress overlooking San Juan harbor eventually became one of Spain's most important strategic outposts in the New World. More than 400 years later, a bunch of gringo politicians and lawyers were shocked -- shocked -- to discover that nicotine was addictive. ------------------------------------------------------------------------ In 1670, the pioneering Dutch anatomist Kerckring described his autopsies of heavy smokers: The tongue of the cadaver is black and gives off an odor of poison; the trachea is coated with soot, like a cooking pot; the lungs are dried-out and almost friable. The corpse gives the overall impression that someone had lit a fire among the organs. In 1761, physician John Hill of London published a clinical study of tobacco use, concluding that snuff users are vulnerable to cancers of the nose. In 1795, physician Sammuel von Soemmering of Maine wrote that cancers of the lip occur primarily among pipe smokers. In 1821, the French Dictionnaire des Sciences Medicales mentioned "the corrosive action of tobacco on the tissues" and recommended that its medical use be severely limited and carefully supervised. In 1836, Samuel Green wrote in the New England Almanack and Farmer's Friend that tobacco is "an insecticide, a poison, a filthy habit," and that it "can kill a man." In 1897, the Supreme Court of Tennessee upheld the state's total ban on the sale of cigarettes, finding smoking to be "wholly noxious and deleterious to health." Nearly 100 years later, a bunch of politicians and lawyers were shocked -- shocked -- to discover that smoking was bad for one's health. ------------------------------------------------------------------------ Of all the innumerable public hypocrisies of this decade -- which bids fair to be remembered as "The Hypocritical '90s" anyway -- the recent settlement between the tobacco industry and the Attorneys General of the various States is clearly a standout. Even the Clinton White House would be hard-pressed to match either the mendacity of the states' rhetoric or the incredible arrogance and greed which that rhetoric is covering up. The ostensible rationale for the settlement is to reimburse the states for the cost of treating smoking-related illnesses covered by Medicare. But this is ridiculous: •First, it makes the assumption that if these patients hadn't been smokers, no Medicare funds would have been spent on them. But everybody dies of something; if not lung cancer, emphysema, or heart disease this year, then prostate or colon cancer, liver disease, or just "old age" a few years hence. Economists have estimated that smokers actually save Medicare funds by premature death, which reduces expenditure on nursing homes, invalid care, and the like. •Second, the public treasury is already raking in loads of loot from smokers. For example, Florida, which initiated this entire shakedown, claims that it spends nearly $300 million annually on smoking-related diseases. But Florida takes in more than $1.6 billion annually in tobacco taxes -- five times its medical expenses. Total cigarette taxes average 53 cents a pack nationally, and even the lowest-tax state (Virginia) takes in more than twice as much in tobacco taxes as it spends on the medical care of smokers. And, by the way, who is forcing the states to pay for medical care for smokers, anyway? The tobacco companies? Nope. It's the Federal Government. So if the states don't like paying these costs, their quarrel is with Washington, not with the industry. ------------------------------------------------------------------------ Another reason advanced for the settlement's draconian terms is to punish the Evil Tobacco Companies for lying to the public about the health hazards of smoking. Come now: Since 1964, every pack sold in the US has carried a prominent warning about the gruesome consequences of smoking. A 70-year-old smoker suffering from emphysema today has been exposed to these warnings daily since he was 35. Moreover, cigarette advertising in the 1930s and 40s -- when he presumably started smoking -- warned of its health effects by implication. Each brand claimed "less throat irritation" or "not a cough in a carload" -- which would lead even a teenager to the conclusion that cigarettes caused respiratory problems, since every brand claimed all the others were bad for you. Then in the 1950s -- more than ten years before mandatory warning labels -- came the Great Tar Derby, with the new filter-tipped brands each claiming less tar (and by implication less damage to health) than its competitors. The advertising became so strident that a 1954 article in Business Week even wondered, "Why has the industry persisted in this negative form of advertising even when, as tobacco growers and others complain, it hurts the trade by making people conscious that cigarettes can be harmful?" And when all of this health-oriented advertising was going on, our 70-year-old smoker was in his early 20s. What put a temporary end to the Tar Derby was a set of "advertising guidelines" issued by the Federal Trade Commission in the fall of 1954. The guidelines insisted that "no advertising should be used which refers to either the presence or absence of any physical effect of smoking" -- but specifically allows mention of pleasure and taste. So the very same image-oriented approach that today's cigarette-prohibition crusaders execrate was essentially imposed by Federal bureaucrats more than 40 years ago! One loophole in the FTC guidelines, though, was that tar and nicotine claims were allowed if they were backed by "competent scientific proof." In 1957, both Readers Digest and Consumer Reports began publishing tar and nicotine content ratings of cigarettes by brand. At the same time, published studies linked cancer to specifically the tar content of cigarette smoke, while earlier research had linked lung cancer simply with the cigarette-smoking habit. This brought on the second phase of the Great Tar Derby. The manufacturers began to trumpet lower tar and nicotine figures in their advertising, and reduced the tar and nicotine levels in their products across the board. Even such heavy-duty nonfiltered coffin nails as Camels, Chesterfields, and Luckies were reformulated for reduced tar.1 The (sales-weighted) tar and nicotine content of American cigarettes dropped an incredible 40% between mid-1957 and the end of 1959. But once again the FTC squashed the industry's health-oriented efforts. In the fall of 1959, as the largest tobacco companies were about to introduce new, still-lower tar brands with massive advertising campaigns, the FTC in secret negotiations with the companies advised them that any reference to the tar and nicotine content of smoke would be interpreted as a claim of health benefits and would therefore require substantiation with epidemiological studies. Since smoking-related diseases typically develop over several decades, and since lung cancer in particular is a rare disease even among smokers, such evidence was of course not available, and so the Commission regarded all advertising of tar and nicotine levels as illegal. Bang! Kent slogan, 1959: "Significantly less tars and nicotine than any other filter brand." Kent slogan, 1960: "Designed with your taste in mind." The unfiltered king-size version of Old Gold was reintroduced; slogan: "Tender to your taste." The inescapable conclusion here is that free-market competition was forcing the tobacco companies to confront the issue of smoking and health head on, and to improve their products while, importantly, informing the public of those improvements -- and in the process, constantly reminding their customers of the health risks of smoking. It was government intervention that halted progress in this area, as the rabidly antismoking Readers Digest noted plaintively in a 1963 article: The latest laboratory tests ... show the tar and nicotine in the smoke of [current cigarettes] to be substantially the same as when the last report was published in July 1961... The reason for this is the FTC "black-out" of facts and figures in cigarette advertising in 1961. Since no claims of superior or improved filtration can be made, cigarette manufacturers have quit trying to produce "safer" cigarettes lower in tar and nicotine. Between 1957 and 1960, such competition reduced the tars in American cigarette smoke by 60 percent. When the "tar derby" ended, so did research for safer cigarettes. In 1964 the government began to mandate health warnings on cigarette packs. Government action replaced the free-market processes that had made unbelievable progress towards safer cigarettes in less than three years with these stilted admonitions, universally ignored, and advertising regulations that discourage product innovation. As a result, no further significant progress has been made in nearly forty years. ------------------------------------------------------------------------ So anyway, the bottom line is that all our local supermarkets celebrated Thanksgiving by raising cigarette prices about 50 cents a pack to start paying off more than $200 billion to the various state governments which needed money and caught sight of some deep pockets. "Punishing the industry" is nonsense, anyway: corporations never pay taxes, they simply collect taxes from their customers. And who are their customers? Households making less than $30,000 a year take in about one-sixth of the total national income, but they pay about half of all tobacco taxes. This new indirect tax hits hardest on the poorest Americans. (And the idea that somehow our teenage culture -- which buys sneakers for $100 a pair and pays $20 extra to have some Italian's name displayed above its jean-clad buttocks -- will suddenly reduce its smoking because of a fifty-cent price increase and the disappearance of Joe Camel is so ludicrous on its face that only a network TV anchor could possibly believe it.) Moreover, nearly all the states contracted out this litigation to the kind of politically well-connected firm exemplified by the Rose Law Firm in Little Rock -- cronies of powerful bureaucrats and high-dollar contributors to helpful state legislators' campaigns. These firms typically do such work for 25% of the resulting settlement, which in this case would work out to many thousands of dollars an hour for most of the lawyers involved. So this settlement takes perhaps $200 a year from the least affluent American households and uses a huge chunk of that money to refurbish the yachts, mansions, and Mercedeses of America's most affluent households. And among its most vocal cheerleaders is California congressman Henry Waxman of the Democratic Socialists of America. So much for "economic justice." ------------------------------------------------------------------------ And so much for any semblance of fairness in our system of civil justice. In order to win its case, the state of Florida had to completely change the rules of civil procedure. Its legislature passed a law which said, in essence, "The tobacco industry is guilty of this crime and will pay for it, and no legal defense will be allowed." Of course, this violates the U.S. Constitution in innumerable ways.2 It also completely eviscerates the protections of a thousand years of common-law experience in fairly adjudicating civil disputes. Such concepts as "due process" and "legitimate grievance" no longer stand between the politico-legal elite and anyone they want to shake down. Because that's exactly what this so-called "settlement" is. The tobacco companies are not settling a legal suit; they are paying protection money to blackmailers and shakedown artists. And if you nonsmokers out there think this is all just peachy, consider that some of our leading health fanatics have called for similar measures against producers of food products they think unhealthy. Think it over as you enjoy your rare steak, potato chips, and beer... ------------------------------------------------------------------------ 1. Some of the more overwrought anti-smoking fanatics have charged that the tobacco companies manipulate the tar and nicotine content of their cigarettes. Well, duh! Of course they do; every maker of products based on natural materials adjusts his blends to produce a consistent product, whether it's coffee, Scotch, frozen spinach, plywood, salsa, or chablis. 2. Article I, Section 9 of the Constitution prohibits Bills of Attainder, that is, special-case laws depriving some specific person of life, liberty, or property without trial. The Sixth Amendment prohibits adjudicating civil cases on any basis other than the traditional body of common law procedures and standards of proof. The Fifth Amendment prohibits imposition of criminal penalties without due process. And so on and so on.... ------------------------------------------------------------------------ Computer guru Craig Goodrich lives in a house in the woods in Elkmont, with his wife, two children, and four cats. He is a representative-at-large of the Libertarian Party of Alabama, a smoker, and a gun owner. References and Acknowledgments •The superb writings of Reason's Jacob Sullum on the tobacco wars. •The Cato Institute has published numerous factual and philosophical studies on this issue, including: •Tobacco Medicaid Litigation: Snuffing Out the Rule of Law •The Ghost of Cigarette Advertising Past •The Pickpocket State vs. Tobacco •Snuffing the Facts About Smokers and many others. ----- The Laissez Faire City Times is a private newspaper. Although it is published by a corporation domiciled within the sovereign domain of Laissez Faire City, it is not an "official organ" of the city or its founding trust. Just as the New York Times is unaffiliated with the city of New York, the City Times is only one of what may be several news publications located in, or domiciled at, Laissez Faire City proper. For information about LFC, please contact [EMAIL PROTECTED] ------------------------------------------------------------------------ Published by Laissez Faire City Netcasting Group, Inc. 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