If Tobacco Deal Is So Great, Why the Rush?

For years, California has been in the driver’s seat in the fight to reduce the risk of lung cancer, one of the nation’s most prolific killers.

California passed a landmark initiative to fund a statewide anti-smoking campaign, developed hard-hitting anti-smoking advertising that dramatically reduced smoking rates, banned Joe Camel and adopted some of the toughest billboard restrictions in the nation.

With the attorney general’s acceptance of the tobacco industry’s speedy ultimatum, California may have taken a wrong turn. It has most certainly taken a blind turn.

The industry announced the proposed settlement on a Monday; all states were required to accept the deal by Friday of the same week or take their chances at trial. The vast majority of states (all but eight) was not even at the negotiating table. The states had their first look at the mammoth document only days before they had to accept. In fact, the timetable was so short and the document so long, a state’s attorney general (and the public) would not have had more than 30 minutes per page if they had read 24 hours a day during the evaluation period.

Why the rush? If this is such a good deal for the states, why did the tobacco industry require states to accept it without any opportunity for public input? Could the industry have plausibly maintained that an agreement that was good after four days of study would not be good after 30?

It is difficult to escape the conclusion that the tobacco industry did not believe that the agreement could withstand the light of day. And, regrettably, some of the state attorneys general simply did not believe it was any of the public’s business.

The comments of California’s attorney general are indicative: When asked whether the public should be given an opportunity to review and comment on the proposed agreement, the attorney general made the remarkable statement that he did not represent the public in this litigation, that his only client was the director of the Department of Health Services--a bureaucrat.

There were questions, too, that would not be easy to answer: Would the proposed settlement provide sufficient money to the state of California to cover its claims for past, current and future costs of treating tobacco-related illnesses, when California can reasonably expect to spend $42.5 billion over the next 25 years and the settlement would only provide a maximum of $23.9 billion? Why would California get so much less than the other states that settled earlier, and so much less than under the previous federal proposals? Texas, for example, got a $17-billion settlement although its health care costs from tobacco-related illnesses are roughly one-third of California’s estimated costs.

If Congress passes a federal tax on cigarettes, wouldn’t the settlement agreement require a dollar-for-dollar reduction in the payments to California? That would protect the tobacco companies, but what would it do to protect the state from its tobacco-related health care costs? How could the agreement realistically reduce teen smoking when there is no “look-back” provision that would penalize the tobacco industry if its actions did not reduce the level of teen smoking? This was a key ingredient in the previous attorney generals’ settlement and the McCain bill in Congress.

The settlement states that tobacco companies will not “take any action the primary purpose of which is to initiate, maintain or increase the incidence of youth smoking.” The inclusion of the word “primary” will allow cigarette companies to undertake activities whose primary purpose is to encourage smokers to switch brands, but whose secondary purpose is to target children.

Why are there no meaningful provisions dealing with second-hand smoke?

Senate President John Burton and I have called on the court that is overseeing the tobacco litigation in California to hold a good-faith hearing before the attorney general commits the public, this Legislature and future Legislatures to a 25-year journey with the tobacco industry to a destination unknown. There may be perfectly rational answers to these questions, and dozens of others that have been raised by health advocates across the country. Even if the answers are disappointing, the settlement might be the best that we could get if our case at trial is a poor one. Only the attorney general and the tobacco industry know and they are not talking.

But the public has a right to know. Otherwise, it may one day be said of California, as the song goes, “We took a wrong turn and we just kept going.”