Key Hurdle Cleared on Tobacco Suits

The Assembly on Thursday passed legislation designed to knock down the last of California’s barriers protecting the tobacco industry from being sued for smoking-related illnesses.

California law prevents individuals from suing tobacco companies for any damages caused by smoking. The far-reaching measure (SB 76) by Sen. Quentin Kopp (I-San Francisco) would nullify that statute.

The vote marked a change of heart in the Assembly, which defeated the bill last week. This time, it teetered on the brink of a second defeat but eventually won the majority needed for passage with one vote to spare--42 to 19, with 18 not voting.

The measure--previously approved by the state Senate--will return to the Senate for concurrence in minor Assembly amendments before it is sent to Gov. Pete Wilson. A spokesman for Wilson said the governor was examining how the bill fit into a proposed nationwide settlement between dozens of states and the nation’s leading tobacco companies.

“As we are in the process of analyzing the impact on California, we will withhold comment on this measure” for the time being, Wilson spokesman Steve Tatum said.

Supporters of the bill won over the key Assembly votes they needed for passage Thursday in part by emphasizing that without such a measure on the books, California could be left out of a key component of the proposed $368.5-billion federal settlement.

Of that amount, about $4 billion annually has been proposed for distribution among states to pay damages to individuals who successfully sue for tobacco-related illnesses.

“California smokers won’t be able to get a dime of that money if they can’t bring a lawsuit,” argued Assemblyman Louis Caldera (D-Los Angeles). “Effectively, you’d be saying a tenth of the national population would be left out of the settlement.”

Under a 1988 California law--drafted by lobbyists and other vested interests at a Sacramento restaurant in a fabled arrangement that has been dubbed the “napkin deal”--individuals are forbidden to sue tobacco companies. The law states that tobacco and other products such as castor oil and butter are shielded from liability on grounds that consumers know the risks but choose to use the products anyway.

Kopp’s bill simply deletes the word “tobacco” from the list of protected products.

In doing so, the measure goes farther than a tobacco liability bill signed into law on June 12. That law, introduced by Assembly Speaker Cruz Bustamante (D-Fresno), only allowed lawsuits against tobacco companies by state and local governments seeking to recoup the costs that tobacco-related illnesses imposed on state health programs for the poor such as Medi-Cal.

Passage of the Bustamante measure prodded Republican state Atty. Gen. Dan Lungren into joining a lawsuit filed by other states against the tobacco companies, thus making California a party to the federal settlement that was negotiated last month and is being examined by Congress.

Opponents of the Kopp measure voiced concerns similar to those of Wilson--that it is too early to tell if the Kopp bill would automatically trigger benefits to California under the proposed federal settlement with the tobacco industry.

Assembly Minority Leader Curt Pringle (R-Garden Grove) argued that since the bill cannot take effect until Jan. 1, the Legislature should keep the Kopp measure on hold “and see how it might mesh” with the final version of the federal settlement when it is approved by Congress.

But Assemblyman Kevin Shelley (D-San Francisco), who led the fight for Kopp’s bill in the Assembly, said passage would “send a message” to those negotiating the national settlement “that California cares” about its outcome.

To the industry, Shelley said, the bill says, “we will resist their insidious lobby” and clear a path allowing injured individuals to sue for damages.

“This is about health and whose health do we care about,” Shelley said. “I believe the health of Californians should be our concern and not the health of a failing industry.”