U.S. Official Suggests Plan on Smoking Suits

The Clinton administration launched its own trial balloon in the talks aimed at settling the mammoth tobacco litigation, as a senior White House official Tuesday suggested cigarette makers be given immunity from lawsuits if they help the government reduce youth smoking by at least 50% over the next seven years.

Deputy White House Counsel Bruce R. Lindsey, who has been monitoring talks between the industry, state attorneys general and private anti-tobacco lawyers, told Bloomberg News that under the proposal, the first specific one he has publicly raised, the industry’s immunity would be extinguished if the 50% goal were not met.

He said the industry--which would also have to establish a compensation fund of as much as $300 billion over 25 years--would be forced to become “a partner with government” in cutting youth smoking or lose its protection from a tidal wave of claims.

“If we could come up with a formulation like that, the attorneys general would agree,” Lindsey said.

But people close to the talks, including some direct participants, were taken by surprise, saying Lindsey’s suggestion has not come up in settlement talks--including a meeting in Chicago that ended Monday. And industry foes criticized the idea, warning that tobacco companies might go to court after seven years to fight over whether the goal had been achieved.

“It’s tobacco buying another decade to sell their product . . . while more people are getting addicted to cigarettes and dying from them,” said Josh Cooper of the American Lung Assn.

Lindsey toured flood-ravaged North Dakota and Minnesota with President Clinton on Tuesday and could not be reached for comment.

Cutting teen smoking by 50% over the next seven years is the goal of the new Food and Drug Administration rules aimed at curbing marketing of tobacco to kids. The tobacco companies have challenged the rules in court, claiming the FDA lacks legal authority to regulate tobacco and that the rules violate their free speech rights.

Coincidentally, on the day Lindsey floated his suggestion, U.S. District Judge William L. Osteen in Greensboro, N.C. announced that he will rule in the FDA case on Friday, an event eagerly awaited by both sides.

The tobacco companies currently face more than 300 smoking-related lawsuits and are spending an estimated $600 million per year to defend them. Included are suits by 24 states seeking recovery of billions of dollars in health-care costs, and about 20 statewide class actions seeking damages for millions of smokers.

Talks aimed at a sweeping settlement of the lawsuits and of the dispute over FDA regulation began about three weeks ago. An agreement will require more than the warring parties overcoming their differences. Because the industry won’t settle without some protection from future lawsuits, Congress would have to approve any deal. Some anti-smoking congressmen, sensing the tide has turned in their favor, would like to see the industry take its lumps. Others will be reluctant to approve what may be attacked as a windfall for cigarette makers and trial lawyers--two highly unpopular groups.

People close to the talks said Tuesday that, contrary to some reports, total immunity for the industry has not been discussed, although some form of limited immunity is on the table.

“This thing about total immunity is a fiction,” said John Coale, a Washington lawyer and a leader of the consortium of private attorneys pushing class-action suits. “They (industry negotiators) haven’t even asked for total immunity,” Coale said. “That’s just a creation by somebody who wants to kill the talks, I guess.”

Nonetheless, said Connecticut Atty. Gen. Richard Blumenthal, the industry’s “concept of relief from liability is much broader than we could ever accept. . . . There’s still a very wide gap . . . on that issue and on others,” he said.

Industry negotiators, who could not be reached, include former Whitewater special counsel Robert B. Fiske, who is also representing Philip Morris in a federal criminal probe of the industry.

Even if a deal is concluded in the next few weeks, winning congressional approval prior to a series of big tobacco trials scheduled for June, July and August seems impossible.

Some lawmakers have vowed to hold exhaustive public hearings before any vote is taken.