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Posted on 07/06/2002 2:03:09 PM PDT by TheEaglehasLanded

Uncle Sam versus the Marlboro Man

The government funds heavy-handed tactics to convince people to stop smoking. Shown here, a bald-headed ad targeted at young people suggests smoking is a "smelly, puking habit."

by Jonathan Trager LP News Staff Writer

Grady Carter, a 68-year-old Floridian, got rich using a rather unconventional method: Smoking cigarettes.

After more than 40 years of daily puffing, Carter was diagnosed with lung cancer. In 1995, he filed a lawsuit against Brown & Williamson Tobacco Corporation -- the manufacturer of Lucky Strike cigarettes -- demanding that the company compensate him for his illness.

A five-year legal battle ensued. Ultimately, the Florida Supreme Court upheld a lower court verdict ordering the company to pay Carter $750,000 for his medical expenses -- plus interest.

"[This case was] about the cigarette companies being held responsible," said the triumphant Carter, the recipient of a bounty of just over $1 million.

Carter's case is just a microcosm of the new War on Smokers. Spearheaded by zealous public health crusaders and politicians, the conflict isn't being fought with bombs and bullets, but with dubious data and loaded language. For many, "Big Tobacco" has become public enemy #1.

It's almost enough to make a tobacco executive long for the good old days, when the yellow, aromatic plant wasn't considered such a menace to society.

* * *

Originally cultivated in the Americas, many Indian tribes believed tobacco had medicinal properties. After Christopher Columbus brought the plant back to Europe, smoking was widely regarded as a soothing and -- get this -- health-enhancing activity.

One prominent physician, Dr. Johannes Vittich, said there is "no doubt that tobacco can cleanse all impurities and disperse every gross and vicious tumor, as we find by daily experience."

"It cures cancer of the breast, open and eating sores, scabs and scratches, however poisonous and septic, goiter, broken limbs, erysipelas, and many other things," he added.

Not everyone was as pleased. Pope Urban VIII forbade smoking tobacco in any Catholic church, a transgression punishable by excommunication. In Hindustan, the Mogul emperor would punish smokers by splitting their lips. In Turkey, Sultan Murad IV often drove a pipe through a smoker's nose immediately before his beheading.

But elsewhere, tobacco enjoyed immense popularity. French Emperor Napoleon Bonaparte was said to have smoked about 50 cigarettes per day. German Prime Minister Otto Von Bismarck spoke fondly of smoking, saying it leaves one feeling "better tempered."

In America, mass antipathy toward smoking didn't emerge until the turn of the 20th century. Even then, the anti-smoking movement was mostly confined to puritanical pockets of "progressives" who claimed that the habit caused an array of infirmities -- including color blindness, baldness, stunted growth, and sterility.

Even during the height of alcohol prohibition in the 1920s, the tobacco industry was largely untouched by the heavy hand of government.

With the rise of television in the 1950s, cigarette advertisements became ubiquitous ("You get a lot to like with a Marlboro"), and celebrity spokespersons for tobacco companies were commonplace (Dick Van Dyke for Kent cigarettes).

The turning point for American smoking came in 1964, when Surgeon General Luther Terry released a report that persuasively linked smoking to lung cancer. Soon after, the government required the Surgeon General's warnings to be printed on cigarette packs (1965), forbade cigarette manufacturers from running TV ads (1971), and banned smoking on interstate buses and domestic airline flights over six hours (1990).

And that was just the beginning.

* * *

In the 1990s, the government launched an all-out offensive against tobacco companies:

* In 1993, the Environmental Protection Agency put out a report that claimed "passive" smoking was responsible for about 3,000 lung-cancer deaths per year. Health activists used the report as justification for promoting a litany of local ordinances prohibiting smoking in private restaurants and businesses.

There was just one problem: The report was as phony as a candy cigarette. In 1998, U.S. District Judge William Osteen ruled that the agency had cherry-picked its data, and used unorthodox methodology to "prove" the connection between second-hand smoke and cancer.

"The court is faced with the ugly possibility that the EPA adopted a methodology for each chapter, without explanation, based on the outcome sought in that chapter," he wrote.

The judge's findings confirmed a Congressional Research Service report that stated there is no evidence to support classifying environmental tobacco smoke as a "Class A Carcinogen," the most definitive link between a chemical and cancer.

* In 1994, Congress dragged executives of the seven largest tobacco companies -- labeled the "Seven Dwarfs" by the mass media -- in to testify before a committee. Before television cameras and millions of viewers, the Congressmen asked the executives whether they had evidence that tobacco was addictive.

In the spotlight and under pressure, the representatives made a major blunder. Rather than admit what the vast majority of Americans already knew -- that nicotine, along with caffeine, chocolate, and Kung Fu movies, is indeed "addictive" -- they simply lied.

It was a public-relations fiasco from which the companies never recovered.

* In the mid-1990s, David Kessler, the Ivy League-educated, bearded commissioner of the Food and Drug Administration, decided to make regulating tobacco his personal crusade.

Appointed by President George Bush and retained by President Bill Clinton, Kessler had a reputation as an intense bureaucrat who passionately believed that nicotine should be regulated like cocaine or heroin.

"When Kessler believes something is right, he will use whatever moral, legal and regulatory persuasion he has," an FDA official once said.

The "persuasion" Kessler decided to use was the force of law. He proposed banning outdoor tobacco advertising within 1,000 feet of a playground or school, eliminating tobacco vending machines, and forbidding tobacco companies to sponsor public events. He also advocated limiting all other advertising to black text on a white background, except in adult periodicals.

Kessler's regulations would have been expensive: The Barents Group LLC estimated a one-time cost of implementing them at $748 million, and more than $1 billion for the tobacco industries and consumers. In addition, the policy would have meant billions of dollars in lost revenue for ad agencies, magazines, newspapers, and billboard companies. As a result, the new measures never got off the ground.

Frustrated by Kessler's lack of success, anti-smoking forces opened a new front against the tobacco companies, claiming they were targeting children with seductive -- and sexually suggestive -- cartoon characters like Joe Camel. The Cartoon Battles had begun.

* * *

In 1988, Camel cigarettes were having a tough time. Public opinion polls revealed that the brand was widely perceived as an "old man's" cigarette, and sales were slipping. Brand manufacturer R.J. Reynolds needed a new spokesperson.

The company got one in the form of Joe Camel, a smooth, sunglasses-wearing, cigarette-smoking cartoon. The character quickly became as well known as Mickey Mouse and Donald Duck.

As Joe Camel began popping up in ads, on tee-shirts, and on billboards, a curious charge was leveled against the hip new character: Portrayed as the object of desire of sexy females, some of the more perceptive Camel connoisseurs noticed Joe's head had certain -- ahem -- phallic qualities.

In an interview in Print magazine, however, Mike Salisbury -- the creator of Joe Camel -- denied the charges.

"I was just trying to make this stupid [camel] head have some kind of expression I could change from ad to ad, and I remembered how Sean Connery as James Bond could move his eyebrows so expressively," he said. "So I ripped off his eyes and eyebrows and Don Johnson's hair."

However, anti-smoking forces were less concerned with Mr. Camel's artistic merit, and more concerned about his appeal to the Nickelodeon generation. R.J.Reynolds was using the character to recruit a new wave of juvenile addicts, they claimed.

The ferocity of their charges caused others to jump to Joe's defense, saying the charismatic camel was no different than many other popular corporate characters.

"Last time I checked, people under the age of 18 weren't major buyers of life insurance, household cleaners, automobile rust-proofing, or tires -- yet Snoopy, Mr. Clean, Rusty Jones, and the Michelin Man are used to promote those products," said Joe Bast, president of the free-market Heartland Institute in Chicago.

In 1997, the Federal Trade Commission sought to bar the company from using Joe Camel, alleging the campaign "unlawfully caused or was likely to cause substantial and ongoing injury to the health and safety of children and adolescents under the age of 18."

The agency dropped its complaint after tobacco companies agreed to stop using cartoon characters to hawk cigarettes as part of a condition in a 1997 lawsuit -- a lawsuit that ultimately changed the very nature of government-industrial relations.

* * *

That same year, the battleground shifted from carcinogens, cartoons, and commercials to a more fundamental goal: Money. Billions of dollars worth.

The question: Do smokers impose a cost to state treasuries in the form of additional medical expenditures? If so, claimed government attorneys, states were entitled to compensation from the tobacco companies.

These lawyers were just blowing smoke, countered a number of scholars. Studies by Harvard Economist W. Kip Viscusi and the Congressional Research Service showed that state governments actually make a profit from smokers -- after factoring in cigarette excise taxes and pension account savings that result from earlier smoking-related deaths.

But in 1998, the "Big Four" tobacco companies -- Philip Morris, R.J. Reynolds, Lorillard, and Brown & Williamson -- decided it was better to settle than fight, and negotiated a deal with all 50 states. The total payout: A whopping $246 billion. In exchange, the companies avoided trial costs and what would undoubtedly have been a vicious smear campaign against them. They also gained immunity from future state suits.

Anti-smoking crusaders at the American Lung Association and the American Cancer Society were ecstatic, expecting the settlement money would be used to finance anti-smoking educational efforts.

They soon learned that government can be an unwieldy weapon. A study conducted in 2001, three years after the settlement, estimated that only 7% of the money from the tobacco settlement had been spent on such campaigns.

Instead, politicians spent millions of dollars repairing sidewalks (California), building schools (Colorado), doling out scholarships (Michigan), and various other vote-buying projects.

"There was a sense when the states settled the suits that it was a good deal," said Cassandra Welch, manger of government relations for the American Lung Association. "The reality is, there's an uphill battle in every state."

Worse yet, the settlement money hasn't come out of tobacco company revenues. Immediately following the settlement, the price of a pack of cigarettes soared by 45 cents, as companies passed on the cost of the settlement to consumers.

And the federal government has been trying hard to raise that even further.

Prior to the state settlement, then-President Bill Clinton had unsuccessfully pushed for a $1.50 per-pack tax increase on cigarettes to finance new government spending. That proposal was defeated after the tobacco companies counterattacked with a $40 million advertising blitz.

In 1999, the federal government decided that if you can't beat 'em, sue 'em. Taking a page out of the states' playbook, the feds also filed suit, demanding to recoup the cost for billions of dollars of smoking-related health care, and accusing cigarette-makers of a "coordinated campaign of fraud and deceit."

When Republican Attorney General John Ashcroft took over the helm of the Justice Department, many pundits assumed the tobacco suit would fade away. That has not been the case. Instead, the Bush administration has continued pushing hard to seize up to $1 trillion from the beleaguered industry.

In addition, in March 2002, the Justice Department asked a federal court to impose Kessleresque restrictions on the industry -- including limiting ads to text-only, black-and-white formats, reserving half the space on cigarette packs for health warnings, banning cigarette vending machines, and forbidding cigarettes from being labeled light or mild.

Such proposals have led some libertarians, including George Mason University economist Walter Williams, to decry would-be smoking regulators as "Cigarette Nazis."

* * *

Exaggeration? You decide. The Nazis -- or members of the National Socialist Workers Party -- were vehemently opposed to smoking, labeling it a crime against the state.

Government-controlled health magazines -- such as Gesundes-Volk (Healthy People: Journal for the Health and Entertainment of the Workforce) and Volksgesundheit (People's Health) -- were filled with anti-smoking articles. There was also Journal Die Volksgifte (The Popular Poison), wholly devoted to the government's campaign against alcohol and tobacco.

The Hitler Youth and the League of German Girls also disseminated anti-smoking propaganda, condemning smoking as "race poison" and a "liberal perversion."

Furthermore, the Nazi government decreed that tobacco advertising could not give the impression that smoking had any "hygienic values," "represent the use of tobacco as a sign of manliness," or "ridicule opponents of tobacco."

The Germans were the first to document the relationship between smoking and lung cancer in the 1920s and 1930s. In 1939, the Reich Health Fuhrer established the "Bureau Against the Dangers of Alcohol and Tobacco."

Chancellor Adolf Hitler himself was fanatically opposed to smoking, and often spoke of Plicht zur Gezundheit ("the obligation to be healthy"). Since the health of the individual was required by the government as part of the national interest, Hitler declared the wishes of the individual in question were of no importance.

As one publication put it: "Brother national socialist, do you know that our Fuhrer is against smoking, and thinks that every German is responsible to the whole people for all his deeds and emissions, and does not have the right to damage his body with drugs?"

* * *

Back in America, few had questioned the government's role in encouraging a German-style Gesundes-Volk, or spoke out against its increasingly rabid campaign against smoking. But that's changing.

Now, even former government health officials say the War on Smoking has spiraled out of control. Just ask Rosalind Marimont, a former researcher at the National Institute for Health, and author of a brochure called "Casualties of Smoking: Truth, Fairness & Children."

"The War on Smoking, which started with a germ of truth -- that smoking is a high-risk factor for lung cancer -- has grown into a monster of deceit, tyranny, and greed, further eroding the credibility of the government, and harming our health and welfare," she writes.

Today, tobacco is still a $48 billion industry in America. And about 25% of Americans still smoke regularly, even though everyone knows that habitual smoking may eventually lead to lung cancer or heart disease.

Yet anti-smoking crusaders refuse to give up the fight. Asked whether she ever thought a total prohibition on nicotine would become a reality, former U.S. Surgeon General Jocelyn Elders recently said, "I think it will come, maybe not in my lifetime, but it will come." Perhaps. Only time will tell whether such a prediction will come true, or whether the regulators' dream of a brave, new, tobacco-free America will go up in smoke.

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