Smoking Foes Split as Factions Oppose Industry Immunity

On the eve of a high-stakes struggle in Congress over sweeping regulation of the nation’s cigarette companies, the tobacco-control movement is badly fractured, beset by philosophical differences, personal animosities and tactical disagreements.

Reflecting the deep divide in the anti-smoking movement, critics of a proposed national tobacco settlement have organized a new coalition to challenge rival groups that are willing to grant legal protections to cigarette makers in exchange for public health gains--the quid pro quo at the heart of the proposed $368.5-billion national tobacco settlement.

The new coalition, called Save Lives, Not Tobacco, is expected to urge Congress to pass sweeping anti-smoking legislation without granting the industry its cherished goal of immunity from the most threatening types of lawsuits.

The group’s formation, to be announced in coming weeks, underscores the bitter ideological debate and personal hostilities that have festered within anti-smoking ranks over whether it is necessary to cut a deal with cigarette makers to achieve public health goals. The split is likely to further complicate the already thorny task of moving major tobacco legislation through Congress next year.

The more militant health and consumer groups, such as the American Lung Assn. and Ralph Nader’s Public Citizen, oppose any special legal protections for tobacco firms, including restrictions on class-action lawsuits or limitations on punitive damages. They maintain that the civil justice system should not be changed for the sake of one interest group, especially a rogue industry such as tobacco, which has been linked to the deaths of 400,000 Americans a year.

Tobacco companies “should get no protection--nothing,” said Bill Godshall, director of SmokeFree Pennsylvania. “The tobacco industry should be treated like every other corporation.”

Moreover, Godshall and other activists contend that accepting any restrictions on lawsuits that could lead to huge damage awards against the tobacco industry would eliminate the strongest deterrent to industry misconduct and consequently undermine public health goals.

Their more moderate counterparts, such as the American Cancer Society and the National Center for Tobacco Free Kids, regard such legal protections for cigarette makers as a necessary evil. Banded together in a coalition called Effective National Action to Control Tobacco, or ENACT, they generally believe sweeping anti-smoking measures will never be passed unless the industry gets something in return.

The industry’s primary goal in federal legislation is securing limits on its legal exposure, which is massive and growing weekly.

In the past, when anti-tobacco forces had little prospect of moving strong legislation through Congress, their periodic internecine warfare seemed largely academic. But now that the industry is anxious to buy peace, the stakes and the costs of disunity could be much higher.

“I think it’s a terribly serious problem, and it’s gotten worse in recent months,” said Michael Pertschuk, who has battled the industry for three decades and headed the Federal Trade Commission during the Carter administration. “The bitterness is running so deep it is difficult to imagine coordination.” The groups have virtually identical goals but are seriously split on tactics, said Pertschuk, who philosophically is closer to ENACT.

Mitchell Zeller, associate commissioner of the Food and Drug Administration and a longtime industry foe, said at a recent conference in San Francisco that the fissures might make it impossible to enact effective anti-tobacco legislation.

In an attempt to heal the rupture, former Surgeon General C. Everett Koop held a meeting in Washington last week to seek a consensus between representatives of ENACT and Save Lives. However, the meeting broke up after about 90 minutes, with the groups still divided on the “immunity issue,” according to sources at the gathering.

The clash has become so divisive that Godshall, a Save Lives organizer, has compared Matt Myers, an ENACT leader, to Neville Chamberlain, the 1930s British prime minister who naively attempted to appease Hitler. Myers declined comment.

In turn, another ENACT leader, Linda Crawford, derided the militants as “tree huggers,” likening them to environmental extremists.

Both coalitions advocate tough anti-smoking legislation, including unfettered regulatory authority for the FDA, major advertising restrictions, steep tax hikes on cigarettes and disclosure of internal industry research on the health hazards of smoking.

But their split on the immunity issue reflects sharply differing perceptions of how far the pendulum has swung against Big Tobacco.

The militants contend that the pendulum will continue to swing against the industry, which can be brought under control without any major concessions. The so-called moderates, many of whom are in fact steadfast liberals, believe that the cigarette companies, weakened though they are, could still kill a bill that would cost them billions and give them nothing in return.

In some ways, the clash parallels those within the $50-billion-a-year tobacco industry, whose members ordinarily present a united front in public relations, lobbying and litigation but aggressively compete for sales and have had internal disputes about elements of the settlement.

Beltway Insiders vs. Grass-Roots Skeptics

The differences between the two anti-smoking camps involve style as well as substance. With some exceptions, the ENACT groups are more established and well-funded, with strong Washington ties, whereas their critics are more ideological, grass-roots oriented and, in many instances, deeply skeptical that anything good can come out of Washington.

In addition to the American Cancer Society and Tobacco Free Kids, ENACT’s member organizations include the American Heart Assn., the American Medical Assn., the American Academy of Family Physicians, the American College of Chest Physicians and the Children’s Defense Fund.

Besides the Lung Assn. and Public Citizen, Save Lives’ members include Americans for Nonsmokers Rights, the American Council on Science and Health, the American Public Health Assn., a bevy of local anti-tobacco groups, including Californians Against Death by Tobacco, UC San Francisco Medical School professor and author Stanton Glantz, and Minnesota Atty. Gen. Hubert H. Humphrey III.

Both sides, in what one observer called “the battle of the white hats,” include individuals who have been fighting the industry for years.

The new coalition also includes litigants who were excluded from the proposed tobacco settlement announced in June. One member is the Coalition for Workers’ Health Care Funds, which represents employee insurance programs that have filed lawsuits in 26 states seeking to make tobacco companies reimburse billions of dollars in smoking-related health care costs.

While the proposed tobacco deal would provide billions in health care reimbursement to states, its ban on class-action suits, and any other type of aggregated claims, could prevent the employee health care programs from pursuing their cases.

This is hardly the first dispute among anti-smoking activists. They have often been a fractious bunch, prone to squabbling over strategy and to jealous anxiety over who gets credit for what. They sometimes seem angrier at each other than at the tobacco companies, reminiscent of bitter divisions that beset the antiwar movement in the late 1960s.

Many of the personal salvos this year have been lobbed at Myers, executive director of the National Center for Tobacco Free Kids, a group founded two years ago with a multimillion-dollar grant from the Robert Wood Johnson Foundation.

Negotiating Tactics Sparked Disagreement

The attacks began when it came to light in April that Myers, an attorney and veteran anti-tobacco lobbyist, was the only movement representative participating in the negotiations that led to the massive settlement between the industry, 39 state attorneys general and plaintiffs lawyers.

Myers was instrumental in extracting many of the public health concessions in the deal. Since then, he has acknowledged that certain aspects of the settlement need strengthening--particularly provisions limiting the power of the FDA to regulate the cigarette companies.

Nonetheless, he has been chastised by some erstwhile allies. Some members of Save Lives have maintained since the spring that there was no need to negotiate because their side ultimately would prevail as a result of future legal victories.

Myers declined comment on the personal attacks. Rather, he said, “I think diversity of opinion among public health groups has been constructive and beneficial. However, to the extent the public health community sees each other as the enemy rather than the tobacco industry . . . it could weaken the voice of our entire community.”

Richard Daynard, founder of Northeastern Law School’s Tobacco Products Liability Project, said he too would prefer unity. But, he said, Save Lives’ stance against sacrificing legal rights is fundamental and inextricably linked to health because much of the damaging information about the tobacco industry has emerged as a result of litigation.

“Lawsuits against the tobacco industry currently are the preeminent public health measure,” Daynard maintained.

The debate among the activists over legal concessions to the industry has intensified in recent weeks.

Under the settlement, tobacco firms would pay $368.5 billion over the next 25 years to reimburse states for money spent treating sick smokers, as well as funding smoking cessation programs and anti-smoking advertising campaigns. Sharp limits would be imposed on tobacco advertising and marketing, including a ban on billboards and merchandise with tobacco logos, and the companies would have to terminate their sponsorship of sporting and cultural events.

In return, the industry would get a ban on lawsuits by the states and class-action claims, as well as prohibition of punitive damages in suits by individual smokers and a $5-billion annual cap on litigation damages.

Since cigarette makers have had remarkable success in the courts--and no one yet has won punitive damages--supporters of the deal, led by Mississippi Atty. Gen. Mike Moore, consider the concession worth making.

However, the settlement would require new federal statutes to limit the type and scope of lawsuits against tobacco firms.

In an attempt to come to grips with that reality, the American Cancer Society commissioned Hogan & Hartson, a Washington law firm, to review the settlement. That inadvertently led to one of the most ferocious skirmishes in the war of the anti-tobacco groups.

In July, the ACS leaders declared that the settlement was fundamentally flawed. To buttress its position, the ACS disseminated a stinging critique of how the deal would severely curtail the ability of the FDA to regulate the tobacco industry and in particular to reduce the nicotine content of cigarettes.

Later in the summer, the society sent to all members of Congress a lengthy analysis of several constitutional issues raised by the settlement. The analysis was prepared by Hogan & Hartson.

The study told members of Congress there are three possible ways it could restrict litigation against tobacco companies without running afoul of the Constitution. Among the memo’s options: Congress could enact legislation compelling states to pass laws barring class-action lawsuits against tobacco companies and prohibiting punitive damages in order to qualify for federal funds.

For many weeks, the memo drew little notice. Then it came to Godshall’s attention, and he lobbed a verbal grenade, an e-mail to anti-tobacco activists, contending that the ACS had come out in favor of “preempting” state laws.

Cancer Society Against ‘Preemption’

In the tobacco-control world, “preemption” is a fighting word. Historically, it has connoted efforts by Big Tobacco to prevent states and localities from passing laws that are tougher than those enacted by the federal government.

The American Cancer Society memo stated flatly that it opposed preemption of any state or local tobacco-control laws, such as those prohibiting smoking in restaurants.

“We’re not for preemption. We want more state and local policies to keep the pressure up on the tobacco companies,” Crawford said in an interview.

Godshall retorted that neither Crawford nor any other ACS official had disowned the memo or come out against giving the industry any special legal protections.

“Why are we fighting among ourselves?,” Crawford lamented. “We’re not a legal group. Public health is our primary concern.”

But Daynard said Crawford’s position failed to address the link between litigation and public health. He derided the memo as a “cookbook on how to cut off the legal rights of cancer victims.”

Late last week, another nasty skirmish indicative of the deep distrust erupted when ENACT released polling data saying residents of four states--Colorado, Michigan, Ohio, Oklahoma--all favored swift congressional action on comprehensive tobacco legislation.

Two Save Lives members--Action on Smoking and Health and the Workers Health group--immediately issued press releases saying that the pollsters failed to give relevant information to survey respondents in an effort to skew the results. ENACT spokesmen retorted that the detractors based their criticism on a draft question which was not asked.

Still, there was a potentially significant development at mid-week that could move the two camps closer together.

After considerable debate in Dallas, the policymaking delegate body of the American Medical Assn., a key ENACT member, approved a resolution opposing any civil immunity “or any other special legal advantages” for the tobacco industry.

At the meeting, the delegates voted against accepting an AMA task force report on immunity that would have given the organization wiggle room to endorse legislation to give cigarette companies such legal protections. “The delegates told us: ‘Not over our dead bodies’ would they accept immunity,” said AMA trustee Dr. John C. Nelson.

The AMA vote followed a recent decision by Koop to spurn a request that he become the titular head of ENACT. A Koop aide said his staunch opposition to affording the industry any special legal protection played a role in his choice.

As time has passed, the militants have gained strength, aided in part by further damaging revelations about the industry and in no small part by industry miscues--in particular the attempt to sneak a $50 billion tax break for the cigarette companies into an appropriations bill last summer.

The House and Senate are expected to consider half a dozen or more tobacco bills--some of which include special legal protections for the industry and others that don’t.