Tobacco Critic Waxman Sees No Chance for Accord in ’96

The tobacco industry’s most prominent critic in Congress said Monday that there is no chance a federal law will be passed this year to resolve massive litigation against the industry.

“I do not see any possibility for a global deal on tobacco being considered this year, and appropriately so,” Rep. Henry Waxman (D-Los Angeles) said in an interview. “Whatever legislation anyone might want to consider ought to be considered thoughtfully and thoroughly and aired publicly.”

Waxman said there simply isn’t time to do that before Congress’ scheduled adjournment Oct. 4.

In late August, a draft proposal surfaced that would grant the tobacco industry partial immunity from lawsuits in exchange for payments to fund anti-smoking programs, compensate sick smokers and reimburse states for smoking-related health-care costs.

At the time, Mississippi Atty. Gen. Mike Moore said there was a chance that such legislation could be passed before the end of the year. But that kind of timetable has generated considerable opposition.

“This would be an unprecedented bill,” Waxman said. “I haven’t seen any justification to give the tobacco industry a special privilege no other industry has--to not be held responsible for the harm they’ve done.”

The plan was first disclosed in the Wall Street Journal and subsequently confirmed by Moore, one of 14 attorneys general who have sued the tobacco companies seeking reimbursement for money their states have spent treating smokers’ with health problems.

Sources said Moore had been negotiating with consultants and lawyers representing the industry.

But executives at the cigarette companies--including industry leaders Philip Morris and R.J. Reynolds--publicly denied that they were participating in any negotiations and maintained their position that the attorney general suits are meritless. On Monday, Philip Morris spokeswoman Dolly Colby reiterated that position.

Moreover, spokespersons for an array of tobacco-control organizations--including the American Cancer Society, the American Heart Assn. and the American Lung Assn., working in unity as the Coalition on Smoking or Health--have also expressed skepticism about the proposal.

Representatives of all three organizations sent a letter late last week to several state attorneys general who have sued the tobacco companies, voicing reservations about the proposed deal, including a provision dealing with the Food and Drug Administration.

The draft proposal provided that regulations announced in late August by the FDA to restrict youth-oriented tobacco marketing would have the force of law, but it would have prohibited the FDA from asserting jurisdiction over the industry or imposing further restrictions on cigarette marketing, sources said.

In return, persons familiar with the proposal said it called for annual payments of $6 billion to $10 billion for the next 15 years. Most of the money would have come from a sizable increase in federal cigarette excise taxes or a surcharge paid by the companies based on sales.

“From our point of view, as public health advocates, we believe that nothing should be done to weaken the just-established FDA regulations or to restrict FDA or other federal agency jurisdiction over tobacco products,” said the letter signed by Fran Du Melle of the Lung Assn., Scott D. Ballin of the Heart Assn. and Susan L. Polan of the Cancer Society.

“We would also oppose releasing the tobacco companies from liability for wrongdoing, past or future. . . . In addition, state and local governments should not be preempted from taking additional, stronger steps deemed necessary to protect public health,” the letter said.

Tobacco-control advocates, including University of California Medical School professor Stanton A. Glantz, also expressed dismay that they had not been included in the talks so far.

“Any talk of a legislative resolution is grossly premature,” because it could impair progress being made in litigation around the country, said Glantz, co-author of “The Cigarette Papers.”

“Important information is coming out of the [pretrial] discovery process, and we do not even know the full extent of the industry’s wrongdoing or liability. A resolution at this time would stop this important process,” Glantz said in a Sept. 4 letter to Minnesota Atty. Gen. Hubert H. Humphrey III, who had expressed doubts about the deal.

Humphrey was one of seven attorneys general who met in Chicago on Friday to discuss the proposal and other issues. Afterward, he said the meeting focused on three key issues involved in any resolution of cigarette litigation: preventing marketing to people under 18, full disclosure of all tobacco company research on smoking and health issues, and ensuring that the tobacco companies pay damages “commensurate with the harm done by their lawbreaking.”

He stressed that any further discussions would afford an “opportunity for all stakeholders to be heard.” Humphrey indicated, though, that he expects Minnesota’s case against the industry to go to trial.

James E. Tierney, the former attorney general of Maine who is assisting the attorneys general in coordinating their efforts, said he understands the concerns of the public health community about secret negotiations. But he stressed that “the tobacco-control movement has nothing to fear here.”

He said discussions of possible legislative proposals will continue as the states prepare their cases for trial, with Mississippi’s being the first, scheduled for March.

“Every A.G. I talked to expects to have their case go to court,” Tierney said. However, he said the prosecutors had had productive discussions about what should be included in any federal legislation if a bill is introduced in the future.