Skepticism About Tobacco Deal Pervades Senate Panel

The pending $368.5-billion tobacco settlement encountered an array of bipartisan skepticism in the Senate Judiciary Committee on Wednesday, increasing the likelihood that it will not become law in the form negotiated by state attorneys general and cigarette company attorneys.

The skeptics ranged from staunch liberals--Sen. Edward M. Kennedy (D-Mass.)--to archconservatives--Sen. Mike DeWine (R-Ohio)--and others in between the political spectrum. In addition to expressing various reservations about the proposed settlement, the senators used the occasion to frequently bash tobacco companies, who constitute a $50-billion-a-year industry that once seemed impregnable.

Although much of the hearing focused on the deal’s fine points, Kennedy, a longtime critic of the industry, expressed indignation that despite the settlement, tobacco company representatives still have not acknowledged that “smoking causes cancer, . . . is hazardous for your health and can cause death.”

At a hearing on June 26, Kennedy noted that in the settlement, the industry agreed to new labels embodying those warnings. However, when he asked Philip Morris lawyer Meyer G. Koplow at that hearing whether industry officials agreed with those warnings, Koplow said he could not speak for company executives and would try to get them to respond.

Afterward, Kennedy sent a follow-up letter to Koplow, but so far the industry has not responded, the senator said.

“We still have not heard from Big Tobacco. Their silence is one of many dark clouds over the current agreement,” Kennedy said.

In the settlement, the industry agreed to pay $368.5 billion over 25 years, money that would, among other things, compensate states for expenditures incurred in treating ill smokers, finance a $500-million-a-year nationwide anti-smoking campaign and provide payments for individuals who prevailed in lawsuits against the industry. Also, the industry would accept severe restrictions on marketing and advertising practices.

In return, the industry would gain immunity from class-action suits by private parties, Medicaid recoupment suits by states and punitive damages for any past misconduct. Its liability from lawsuits would be capped at $5 billion a year.

Mississippi trial lawyer Richard Scruggs, Connecticut Atty. Gen. General Richard Blumenthal and Colorado Atty. Gen. Gail Norton all urged the panel to swiftly approve the deal they helped negotiate--stressing that smoking kills 420,000 Americans and that every day 3,000 U.S. youths start smoking and that a third of them will die from it.

Rather than embracing the “bird in the hand theory,” the senators reacted as if they had been handed a wounded quail that needed significant medical attention.

Sen. Patrick J. Leahy (D-Vermont) said he could not approve the complicated pact unless the industry is willing to turn over mountains of documents it is still trying to keep secret.

“No immunity [from future lawsuits] without full disclosure,” Leahy said.

Under the settlement, the industry has agreed to surrender internal research documents about the hazards of smoking. However, the industry would not have to immediately turn over thousands of documents it claims are privileged because they involve confidential communications between industry attorneys and their clients.

Rather, the settlement calls for the creation of a special panel of three federal judges who would review claims of privilege involving industry documents.

Critics contend the cigarette companies have improperly invoked claims of privilege for 40 years as part of a strategy to suppress the health hazards of smoking. Minnesota Atty. Gen. Hubert H. Humphrey III said a judge in his state made a preliminary finding that the industry would have to surrender thousands of such documents, and further hearings on the issue commenced Wednesday in St. Paul.

Humphrey welcomed Leahy’s overture, urging the senators to get all the documents before approving a deal he blasted as “a Trojan camel.” Moreover, Humphrey urged the senators to subpoena some of the 33 million documents Minnesota has obtained during pretrial discovery.

Sen. Dianne Feinstein (D-Calif.) said the settlement contained a host of troublesome terms, including the fact that industry payments would be tax-deductible--meaning taxpayers would pick up about $147 billion of the cost.