State Senate Backs Repeal of Tobacco Shield

In a big defeat for the tobacco industry, the Senate voted overwhelmingly Thursday to repeal a state law that shields tobacco companies--exposing them to potential lawsuits by the state and individual citizens.

Supporters of the bill said it is designed to give Republican Atty. Gen. Dan Lungren the legal tool he says he needs to join 22 other states in suing tobacco companies for recovery of public health costs related to smoking, chewing or snorting tobacco.

On a lopsided 28-9 vote, the Senate approved the bill (SB 67) and sent it to the Assembly, where a more narrowly drafted proposal by Speaker Cruz Bustamante (D-Fresno) is pending. A compromise between the two measures appears likely.

Gov. Pete Wilson, meanwhile, indicated he supports the idea of the state suing tobacco manufacturers, but spokesman Sean Walsh said the governor has not decided which plan he would sign.

“We will have to wait and see what actually makes it down to our desk and in what form before we endorse any bill,” Walsh said.

Senate approval of the bill followed by one day disclosures that tobacco giants Philip Morris and R.J. Reynolds are negotiating a settlement with other states that could result in a $300-billion payout over 25 years.

It also marked the first time in a decade that either house had passed a bill that would significantly impair the industry’s immunity to product liability lawsuits. That may forecast an erosion of the tobacco lobby’s substantial political power in Sacramento.

In 1987, the Legislature approved a product liability law co-authored by Senate leader Bill Lockyer (D-Hayward) and then-Assembly Speaker Willie Brown that shields companies from liability if the product they make is widely known to be inherently unsafe. The law specifically cites tobacco, as well as other common consumer products including butter, sugar, alcohol and castor oil.

Lungren has refused to join other attorneys general in the litigation, contending that he is prohibited from suing by the 10-year-old immunity law.

Sen. Quentin Kopp (I-San Francisco), one of the Legislature’s earliest opponents of smoking, told the Senate his bill would now give Lungren the legal authority the attorney general insists he needs to sue the tobacco companies and recover taxpayer expenditures.

Lungren’s critics, including Lockyer and many other prominent Democrats, argue that his interpretation of the law is wrong. The existing law may prevent individual suits but does not block the sort of governmental suits that are now pending, they contend. They have severely criticized him for not finding a way to join the tobacco litigation, which some California cities and counties, including Los Angeles County, have entered.

Lungren’s critics have suggested that he does not want to anger tobacco and other big corporations--potential supporters in his planned run for governor next year.

After weathering criticism, Lungren has asked the Legislature to enact a law that would explicitly give him authority to sue.

Kopp said Lungren had told him that he would be “intellectually able” to pursue anti-tobacco litigation with enactment of a bill such as Kopp’s.

But Rob Stutzman, Lungren’s spokesman, said the attorney general neither supports nor opposes the Kopp bill or any other anti-tobacco bills.

The Senate bill would specifically repeal the tobacco industry’s immunity from individual or government-sponsored lawsuits. The other products identified in the law would retain their immunity.

By contrast, Bustamante’s bill would retain the tobacco industry’s immunity from citizen lawsuits, but would amend the law to specify that the immunity was not intended to thwart lawsuits by governments to recoup funds spent on health care.

Bustamante’s bill would take effect immediately upon the governor’s signature. The Senate bill would not become law until Jan. 1.

Because the Bustamante plan would take effect immediately, its passage would take a two-thirds majority in each house. Kopp’s bill requires only a simple majority.

During debate Thursday, the Kopp bill was attacked by only two members, GOP Sens. Raymond N. Haynes of Riverside and William J. “Pete” Knight of Palmdale.

Knight, a smoker, cited the sun’s rays as unsafe and a known cause of skin cancer, but noted the state has not outlawed beaches. Instead, he said, “The state of California encourages scantily clad people to lounge around on beaches. What are we going to do?” he asked.

He said that if “cigarettes are that bad and we cannot afford them, let’s make smoking illegal.”

Haynes noted that California protects other products known to be inherently unsafe in certain circumstances, citing castor oil and other products.

“But we are only removing tobacco because tobacco is the politically incorrect product de jour,” Haynes said.

Smokers knowingly assume the risk of their “irresponsible behavior,” he added, and “they ought to suffer the consequences of their actions” without lawsuit compensation.

Supporters of the bill argued, however, that the addictive properties of tobacco set it apart from other legal but inherently unsafe products. Further, they asserted, tobacco companies manipulated nicotine levels to achieve greater addiction while their executives denied any knowledge of tobacco’s addictive qualities.

“If you drink too much castor oil, you may get a case of diarrhea. If you smoke cigarettes, you die,” Sen. Mike Thompson (D-St. Helena) told Haynes.

* TOBACCO SUIT IMMUNITY: Health advocates say the tobacco industry shouldn’t be immune to future lawsuits. D1