Tobacco Litigation and the Youth


Tobacco Litigation and the Youth
Abstract
Over the years
the tobacco industry has faced a number of controversies. Even though it has
been accused of everything short of murder it has managed to survive and
thrive. Yet, the trend is changing the consumers are no longer to sit back and
sign their death warrants and those of their children as they inhale the deadly
smoke that emerges from the manufacturer product. They are fighting back and
the law is backing them all the way. (Pierce JP et al 1991)
Introduction.


The business of
making tobacco products has come into the limelight as the conspiracy theories
of the industry are being revealed. Through the litigation being carried out
against them, it has been seen that the industry players are an oligopoly in a
free market and are against the consumer. They have no values for the rights of
the consumers and are working for sheer profit. They have together created the
trend of suppressing the development of less hazardous cigarettes so that there
are no ways for comparison against the more harmful cigarettes.
The reason for
this is simple. The industry is one that is dependent on its product. If one
company accuses another of making a product that is harmful or addictive the
other companies will follow suit and if this happens the consumer would have to
sit up and listen. They would then realize that all is not rosy and the message
being given to them that smoking is something done by successful, healthy,
young, smiling people with very white teeth is wrong. (Herbert B. 1998)
False Advertising
The tobacco
industry is facing charges of false advertising. For years the firms have
targeted the audience making false claims—in spite of knowing the harm that
the product causes. With the emergence of the global market the consumers have
gotten smarter and realize that the tobacco companies have been giving them the
wrong information regarding the marketing of their product. (New York Times;
October 11, 1998.)
Consider the
statements being made by the representatives of the tobacco companies that
smoking is harmless. In 1994, the CEO’s of seven tobacco companies testified,
under oath, that nicotine is not addictive. And yet, the tobacco companies have
long known that nicotine is addictive. One industry document from 1963 says,
. . . nicotine is addictive. We are . . . in the business of selling nicotine,
an addictive drug.” (http://www.womenof.com/Articles/le030298.asp)
Similarly the
tobacco industry has known that smoking causes cancer and yet, they have made
public claims that have stated that they do not have conclusive proof of the
fact.

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Yet, in their
own files, the tobacco companies had plenty of proof that smoking cigarettes
does cause cancer. A 1961 confidential memorandum, for example, describes
cigarette tobacco as:
1. Cancer
causing;
2. Cancer
promoting;
3. Poisonous;
and
4. Stimulating,
pleasurable, and flavorful.


Adolescent Smoking
What has really
created the fervor against the tobacco industry is the realization that they
are targeting our future and crippling it. It is targeting the youth. According
to a U.S. Surgeon General’s Report, every day 3,000 children become smokers. Of
those 3,000 kids, 1,000 will die prematurely because of their tobacco habit.

Tobacco use among minors has risen dramatically in recent years, despite the
fact that it remains illegal for minors to purchase tobacco. Every year,
425,000 Americans die from smokinga habit most of them began as teenagers. To
put that number in perspective, think about the Vietnam Veterans Memorial.

That’s seven times the number of names on the Vietnam wall.

(http://www.womenof.com/Articles/le030298.asp)
The fact is that
smoking for youth fewer than eighteen years of age is considered illegal and
yet, companies still cater to the kids breaking the law—time and time again.

Joe Camel is although it’s not the only one is one of advertising aimed
directly, and successfully, at kids.


According to
files from the tobacco industry polls were analyzed regarding the best manner
in which to sell cigarettes to kids from the age of 14-18. Kids were encouraged
to shoplift to get cigarettes so that in the future they would become good
customers.


Philip Morris’s
Marlboro, became the dominant brand by the early 1970s on the strength of its
appeal to young baby boomers. Documents show that every manufacturer sought to
replicate that success. “Today’s teenager is tomorrow’s potential regular
customer, and the overwhelming majority of smokers first begin to smoke while
in their teens,” noted a 1981 Philip Morris corporate memo. “At least
part of the success of Marlboro Red during its most rapid growth period was
because it became the brand of choice among teenagers who then stuck with it as
they grew older.” The document defined teenagers as those 12 to 19 years
old. (Fromson 1998)
Litigation Causes
In lieu of the
facts that have been realized through some of the litigation cases the Congress
began to consider forming a National Legislation that would allow all tobacco
lawsuits to be settled. The reason for the legislation would be simple. While
the tobacco companies right to sell to adults would be predetermined—it would
not have the right to market to the youth. This would be done through providing
the public accurate information and considering the adults as having the right
to make an informed choice.


The national
legislation would then be in a position to make an effort so that the
government would make youth stop smoking.


The national legislation would allow the nation to realize
the effects of tobacco on the children and be more appropriate than the states
trying to fight against the uncertain suits arising throughout its tenure. The
national legislation would balance regulatory power between the states and
federal agencies. (Skretny MT, et al 1990)
State of Colorado vs. the Tobacco Companies 1997
The State of
Colorado filed suit against tobacco companies because the industry over the
years has targeted youth with their products and has discounted the notion that
tobacco was addictive. As a result, state Medicaid funds have been consumed at
an alarming rate to address the health problems incurred by those who smoke.

This settlement holds the tobacco industry liable for smoking-related illnesses
and awards damages accordingly.


The settlement
reached between the five largest tobacco companies and attorneys general from
46 states, four territories and the District of Columbia will total $206
billion over 25 years. Colorado will receive nearly $2.7 billion over that
period. Colorado’s initial share is expected to be almost $33 million, with the
state receiving roughly $100 million per year under the terms of the
settlement. However, the final amount is based on several factors of which
inflation and tobacco consumption are major variables.


A study
conducted by the University of California at Berkeley found that medical bills
from tobacco-related illnesses total a staggering $72 billion in the U.S. each
year. These expenses are truly outrageous and Colorado should use its share of
the tobacco settlement to improve the health of Coloradans and prevent the high
medical bills associated with this deadly habit.


Gale Norton Statement
“I am a proponent of personal responsibility for
one’s actions. The history of the war on drugs demonstrates the difficulty of
regulating Americans’ use of substances. With 48 million Americans addicted to
nicotine, I believe there is little chance of developing a public consensus at
least in the next 10- 15 years favoring tobacco prohibition, much less
overcoming the practical problems of administering a worthwhile enforcement
program. Given these views, I was a tough sell on the idea that litigation
against the tobacco industry was justified.
However, as part of my duties to the People
of Colorado, my staff and I reviewed thousands of pages of documents revealing
the behaviors of the tobacco industry over several decades. After careful and
thoughtful analysis, I concluded that the behaviors of the industry in
marketing to and encouraging the use of tobacco products by kids,
misrepresenting the health effects of their products, and conspiring to keep
safer products off the market were illegal under well-established Colorado law.

Given these violations of Colorado law, I filed suit. We sought civil
penalties, treble damages, and disgorgement of illegal profits, as well as
injunctions against future illegal conduct.
I believe that Colorado has a solid case,
and we are prepared to litigate. Nevertheless, I strongly support the
settlement agreement because I believe it provides a means to establish a
consistent and orderly resolution of the tobacco industry issues for the entire
nation. It is clearly preferable to lengthy and uncertain litigation which may
result in different results and regulation in each of the states. This
agreement represents a compromise, which though not perfect, achieves as much
or more than litigation ever could, and provides a balance of regulatory power
between the states and federal agencies.
Criticism of the settlement has tended to
focus on whether it went far enough in punishing the tobacco companies. While
the settlement reflects a hard-fought compromise, some of the public debate
reflects the best in Monday-morning quarterbacking. For example, if youth
smoking reduction goals are not met, the settlement would impose the largest
penalty ever paid by any industry. This penalty accomplishes the objective of
reorienting the incentives for the industry: giving them a financial stake in
preventing underage smoking. This allows us to work with the industry to combat
teen smoking. It allows us to use the manufacturers’ influence over their
distributors and retailers to create a true change in industry mindset.

(Norton Congressional Testimony 1997)
Texas vs. Tobacco firms
The tobacco
industry agreed to pay a record $14.5
billion to settle a lawsuit filed by the state of Texas, representing the
latest in a series of concessions by the beleaguered industry. (Torri and
Connolly 1998)
Under the terms
of the settlement, private lawyers representing the state will walk with nearly
$2.2 billion. The Texas lawsuit was one of 41 filed by state attorneys general
seeking billions of dollars to compensate states for the costs of treating sick
smokers through Medicaid programs.


Under the
potential agreement, the state would receive an up-front payment of more than
$1 billion and the remainder over 25 years. The industry would also fund a
multimillion-dollar campaign aimed at stopping underage smoking, according to a
source familiar with the talks.


Along with a ban
on tobacco billboards, provisions of the Texas settlement include elimination
of cigarette vending machines from any place accessible to teenagers and the
removal of tobacco advertising from sports arenas, buses and trains, according
to the Los Angeles Times.


Analysis
Since the huge
settlement against the tobacco countries and the states in 1998 it would be
hoped that the incidence of youth smoking would be reduced. But such is not the
case. According to studies being conducted there are a large number of
advertising magazines that are being read by teenagers that feature cigarette
ads and actually since 1998, when they agreed in a court settlement they would
not target youths in their ads, the tobacco industries have actually increased
targeting youth! (King C. 1998)
State officials
who participated in the $206 billion settlement said the findings show tobacco
companies may be violating settlement terms. Attorneys general from around the
country are now in the “discovery’ ‘ phase of an investigation into cigarette
advertising placements, according to Washington Attorney General Christine
Gregoire. Cigarette makers said the studies were misleading. One of the studies
was by the Massachusetts Department of Public Health and the American Legacy
Foundation, a nonprofit group funded by the settlement, completed the other.


“There’s
nothing that a tobacco company can do that won’t receive criticism from the
special interest groups that have their own political agenda,” said Mark
Smith, a spokesman for the Kentucky-based Brown and Williamson Tobacco
Corporation.


The 1998
agreement settled lawsuits against cigarette manufacturers brought by 46 states
to recover the costs of treating sick smokers. One section of the settlement
forbids tobacco companies from “targeting’ ‘ people younger than 18 in their
advertising, marketing and promotions. The Massachusetts study compared
cigarette advertising expenditures in magazines before and after the
settlement, focusing on 19 popular magazines with more than 15 percent of their
readership between the ages of 12 and 17. Fifteen percent was the level used by
the Food and Drug Administration in its efforts to regulate tobacco. Magazines
in that category include Rolling Stone, Glamour and Sports Illustrated. In the
first nine months of 1999, cigarette makers spent $119.9 million advertising,
much of it on brands most popular with young smokers, in magazines with a
significant percentage of teen readers, the study found. That is almost $30
million more than was spent in the same magazines in the corresponding period
before the settlement, the study said.
Thus, the state
attorneys general have begun to conduct investigations to find wheater the
tobacco companies have violated the 1998 national settlement by advertising to
young people. Based on language in the settlement prohibiting tobacco company
practices that “target youth,” the tobacco enforcement committee of
the National Association of Attorneys General is collecting evidence about what
cigarette companies are advertising, and where they are advertising it.


Attorney General
Christine Gregoire of Washington state, an author of the 46-state tobacco
agreement, said the four-month-old investigation could trigger lawsuits against
the industry if the group determines the tobacco ads are designed to lure
teenagers.”We have tried to reach an agreement with the industry on this
issue but have been unable to,” Gregoire said.


President
Clinton had urged the attorneys general to “take immediate and appropriate
enforcement action to stop these practices.” Yet, its been two years since
and little headway has been made.


Industry
officials say they are abiding by the agreement and have discontinued
advertising in magazines they believe appeal to young people. But there is
disagreement over how to determine exactly which magazines meet that criterion.

A spokesman for Philip Morris Cos. said that his company will propose that
“an independent, accurate third-party methodology” be established for
determining youth readership of magazines and be used as a standard for tobacco
advertising. As part of the 1998 tobacco settlement, tobacco companies agreed
to stop advertising on billboards and to avoid the “Joe Camel” type
of ads that many believed appealed primarily to young people. In addition, much
of the industry pledged to follow proposed Food and Drug Administration
guidelines that placed magazines with youth readership of more than 15 percent
off limits to cigarette ads. (Pierce JP 1998)
“When today’s tobacco executives ask the public to
believe that they are no longer targeting our children, they deserve the same
trust as their predecessors when they swore under oath before Congress that
their products are not addictive,” said Matthew Myers, president of the
Campaign for Tobacco-Free Kids, after the studies were released. Tobacco
companies increased magazine advertising after their use of billboards was
prohibited. The companies also had to defend their markets in the face of sharp
cigarette price increases that were imposed to cover the costs of their $206
billion national settlement with the states. (Adelson A. 1997)
Argument
The litigation against the tobacco countries has been
focusing on the youth and yet, it has managed to increase the sales. The reason
for this lies in human psychology. Over the years the tobacco industries have
targeted the youth but all the time sent the message that smoking is a mature
thing that is done by the adults. It is like dangling a carrot in front of the
kids. (Washington Post news service November 9, 1997.)
The youth in their attempt to compete against the adults
have begun to go for the forbidden fruit. By stating that cigarettes are an
adults choice they are forcing the adolescents to rebel and show those around
them that they too are adults and have the right to make their own choices.

Thus, the case is playing right into the hands of the tobacco companies and
handing them on a silver platter what they have been for years striving to
attain.
As Goodman
(1996) wrote in her article The youth turf is in fact the tobacco companies’
briar patch. They love it there. In mid-May, when Philip Morris tried its end
run around government proposals on marketing to kids, a spokesman said with a
straight face, `The time has come to address the issue of underage use of
tobacco.” That was just the latest in a long line of helpful hints on
`underage smoking.” Since 1979, the tobacco folks have recycled whole
series of `tobacco education messages” that describe smoking as `one of
the many activities some people choose to do as adults,” such as `voting,
driving a car, drinking alcoholic beverages, marriage and having
children.” There you go. Linking
cigarettes with driving, drinking and sex. What a turnoff!
The
fact is that the only way to prevent the youth from smoking is by banning it to
the whole society. At the moment the youth are merely being tempted to do what
has been forbidden and the increase in smoking statistics is proving the fact.

Adolescent smoking is not the result of youthful experimentation with a
forbidden fruit, but has become in actuality the result of a deliberate
psychological assault by the tobacco industry and in order to counter the
strategy it must be fully comprehended
and combated.


Conclusion
Investor Thomas A. Russo, a partner at Gardner Investments
in Lancaster, Pa., who holds shares in Philip Morris for clients, said,
“What makes Marlboro such a remarkable consumer product is that its market
share among 20-year-olds is as high as its share among 40-year-olds and
60-year-olds.”
Today,
Marlboro accounts for 75 percent of Philip Morris’s domestic tobacco profits,
according to analyst Black, and has nearly half of the U.S. market for
full-price cigarettes, which also explains why the company’s profit margins are
the highest in the business. (Boston Globe October 13, 1998.)
The
litigation cases rampant around the nation are witness to the fact that the
consumers have finally become educated to the fact that smoking is injurious to
health—not only as a label but as a fact. However, the tactic the states have
adapted to fight against the industries is wrong. The youth are increasingly
favoring tobacco in different forms and the litigation cases banning youth
smoking are to vague to actually succeed. The case in advertising—where the
tobacco companies still advertises is magazines is a fact to the case.


Thus,
unless tobacco industries are completely banned youth smoking will
increase—steadily and fatally. (Center for Substance Abuse Prevention
January/February 1995, p38-41.)
References
1.

The Future of Tobacco Litigation and Policy by Gale
Norton, Attorney General of Colorado available at http://www.womenof.com/Articles/le030298.asp
2. TOBACCO
SETTLEMENT:GALE A. NORTON (Congressional Testimony); 11-13-1997 STATE OF
COLORADO DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL HOUSE COMMERCE
COMMITTEE GALE A. NORTON ATTORNEY GENERAL OF COLORADO November 13, 1997
3. Ellen
Goodman / Boston Globe, Youth anti-smoking campaign is tobacco firms’ briar
patch. , The Dallas Morning News, 06-09-1996, pp 7J.


4. Center
for Substance Abuse Prevention. Growing Up Tobacco Free.Prevention Pipeline,
Center for Substance Abuse Prevention January/February 1995, p38-41.


5. Editorial.

The surge in teen smoking. New York Times; October 11, 1998.


6. Editorial.

Joe Camel’s children Boston Globe October 13, 1998.


7. Herbert
B. Pursuing children. OpED New York
Times; May 3, 1998.


8. Pierce
JP et al Does tobacco advertising target young people to start smoking?
Evidence from California . JAMA 1991;266:3154-3158.


9. King
C. et al Adolescent exposure to cigarette advertising in magazines JAMA
1998;279:516-5220
10. Pierce
JP et al Tobacco industry promotion of cigarettes and adolescent smoking JAMA 1998;279:511-515.


11. Hoppock
KC, Houston TP. Availability of tobacco products to minors. J Fam Pract.

1990;30:174-176.
12. Skretny
MT, Cummings M, Sciandra R, Marshall J. An intervention to reduce the sale of
cigarettes to minors. N Y State J Med. 1990; 90:54-55.


13. Adelson
A. Is anybody getting the picture: despite ads, teen-age smoking is unabated
New York Times July 17, 1997.


14. Mixed
results seen in costly efforts on youth tobacco use Washington Post news
service November 9, 1997.


15.

Slugfest in the Smoke Ring By Brett D. Fromson
Washington Post Staff Writer Sunday, March 1, 1998; Page H01 available at http://www.washingtonpost.com/wp-srv/national/longterm/tobacco/stories/slugfest.htm
16. Tobacco
Firms Set to Pay Texas $14.5 Billion By Saundra Torry and Ceci Connolly
Washington Post Staff Writers Friday, January 16, 1998; Page A01 available at
http://www.washingtonpost.com/wp-srv/national/longterm/tobacco/stories/texas.htm