Pubdate: Wed, 26 Jul 2000
Source: Newsweek (US)
Copyright: 2000 Newsweek, Inc.
Contact:  251 West 57th Street, New York, N.Y. 10019
Website: http://www.newsweek.com/nw-srv/printed/us/
Author: Anna Quindlen, Newsweek

SMOKE GETS IN YOUR EYES

A legal drug that's lethal, but can't be banned? Sure. Welcome to the weird 
world of tobacco.

July 31-- Imagine that millions of Americans are addicted to a lethal drug. 
Imagine that the Food and Drug Administration has repeatedly ducked its 
responsibility by refusing to regulate that drug. And imagine that when the 
FDA finally does its duty, an appeals court decides that it cannot do so, 
that the drug is so dangerous that if the FDA regulated it, it would have 
to be banned.

Welcome to the topsy-turvy world of tobacco, where nothing much makes sense 
except the vast profits, where tobacco company executives slip-slide along 
the continuum from aggrieved innocence to heartfelt regret without breaking 
a sweat, and where the only people who seem to be able to shoot straight 
are the jurors who decide the ubiquitous lawsuits.

The most recent panel to do the right thing handed down a judgment of $145 
billion on behalf of sick smokers in the state of Florida, the largest jury 
damage award in history. Lawyers for the tobacco companies thundered that 
the award would bankrupt them, yet the stock market scarcely shuddered. 
Experts said the amount would likely be reduced when cooler judicial heads 
prevailed.

The jurors who gave up two years of their lives, listened to endless 
witnesses and yet were able to hammer the tobacco companies after 
deliberating only a few hours could be forgiven if they felt they'd fallen 
down Alice's rabbit hole into Wonderland, where the Red Queen cries "Off 
with their heads" but no one is ever executed. Al Gore, for instance, 
inspired by the death of his own sister from lung cancer, insisted not long 
ago that he will do everything he can to keep cigarettes out of the hands 
of children. But he says he would never outlaw cigarettes because millions 
of people smoke. Here is a question: how many users mandate legality? What 
about the estimated 3.6 million chronic cocaine users, or the 2.4 million 
people who admit to shooting or snorting heroin?

I can almost feel all the smokers out there, tired of standing outside 
their office buildings puffing in the rain when once they could sit 
comfortably at their desks, jumping up and down and yelling, "Tobacco is 
different from illicit drugs!" Because it is legal? Now, there's a circular 
argument. A hundred years ago the sale of cigarettes was against the law in 
14 states. The Supreme Court, which ruled earlier this year that the FDA 
did not have the power to regulate tobacco, upheld a Tennessee law 
forbidding the sale of cigarettes in 1900. The justices agreed with a state 
court that had concluded, "They possess no virtue but are inherently bad 
and bad only." At the time, Coca-Cola still contained cocaine and heroin 
was in cough syrups.

Official tobacco apologists spent years insisting their product did not 
cause cancer, then that it was not addictive.

Since then the tables have turned. Tobacco companies spread political 
contributions around like weed killer on the lawn in summer, although 
they've passed from their bipartisan period into an era when they support 
largely complicit Republicans, who like free enterprise (and soft money) 
more than they hate emphysema. (George W. Bush responded to a question 
about the recent megasettlement by bemoaning a litigious nation.) 
Responsibility-minded Americans accept the argument that individuals have 
the right to poison themselves, although studies showing that the vast 
majority of smokers began as minors raise questions about informed consent. 
Official tobacco apologists spent years insisting their product did not 
cause cancer, then that it was not addictive. Now they've done a 180, 
arguing that since there is no such thing as a safe cigarette, a government 
agency like the FDA, created to regulate the safety of products, cannot 
touch them.

If this sounds like having it both ways, that's because it is. Philip 
Morris masquerades as a corporate Robin Hood by making large contributions 
to nonprofit organizations, soup kitchens, ballet companies, museums and 
shelters, being a good citizen with the profits of a product that kills 
400,000 people a year. And magazines, including this one, run articles 
about the dangers of cigarettes in the same issues that advertise them.

Even tobacco foes have fudged. When Dr. David Kessler ran the FDA, he 
publicly concluded what everyone already knew: that cigarettes are nothing 
more than a primitive delivery device for nicotine, a dangerous and 
addictive drug. But the agency never took the obvious next step. The Food, 
Drug, and Cosmetic Act forbids the sale of any drug that is not safe and 
effective, and part of the FDA's mandate is to regulate devices. Cigarettes 
are a device. The drug they deliver is patently unsafe. Ergo, cigarettes 
should be banned.

But if cigarettes were outlawed, what to do with all those tobacco junkies?

That's not going to happen in our lifetime, which is why even a more 
aggressive FDA refused to take this to the limit. Too many tobacco farmers, 
too many tobacco addicts; a right to a livelihood, a right to a lifestyle. 
(Both of these arguments hold for legalizing illicit drugs as well, but 
never mind.) "Prohibition" is a dirty word in America. But tobacco can in 
no way be compared to alcohol. Many people can and do drink safely and in 
moderation, while it is impossible to smoke without some pernicious health 
effects, and nearly all smokers can be described as addicts. But if 
cigarettes were outlawed, what to do with all those tobacco junkies? 
Nicotine clinics providing the patch, strong coffee and hypnotherapy?

Public-service announcements, catchy commercials for kids, settlements with 
the states to recover health-care costs: the tobacco companies, which once 
swore they were doing nothing wrong, are now willing to lose some 
ideological battles to win the war of the profit margin. One Philip Morris 
executive appearing at a recent conference even told Kessler, whose efforts 
to restrict sales and advertising aimed at children spawned a battle royal 
of billable hours, that he welcomed "serious regulation of the tobacco 
industry at the federal level." Now they tell us. Why shouldn't the 
Marlboro men play the angles? The public and the pols have provided them 
with so many angles to play. Here is the bottom line: cigarettes are the 
only legal product that, when used as directed, cause death. The rest is 
just a puppet show in the oncology wing.
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