Tobacco Fires Back as Ads Become Sorely Personal
The instinct for self-preservation being a familiar hallmark of all life on Earth, no one should be surprised at the tobacco industry’s boundless creativity at shoring up its legal defenses.
Over the years, cigarette executives have denied knowledge of any link between smoking and bad health, concealed documentary evidence of their efforts to make cigarettes more potent, cut backroom deals with politicians to reduce their exposure to lawsuits, threatened to file for bankruptcy to evade court judgments -- the list goes on.
Lately, they’ve unveiled yet another novel defensive maneuver. Big Tobacco’s new stratagem is to attack the anti-smoking advertising campaigns sponsored by various state and national anti-smoking agencies and often funded with money extracted from the industry itself.
The companies’ beef, as laid out in a federal lawsuit that R.J. Reynolds Tobacco Holdings Co. and Lorillard Tobacco Co. filed this month against the California Department of Health Services, is that these campaigns have become uncomfortably personal. In the industry’s view, they have evolved from straightforward warnings to kids about the health effects of smoking into screeds that depict “tobacco company employees and executives as loathsome persons motivated by cynicism, greed and malevolence,” as the lawsuit puts it.
The plaintiffs particularly resent a series of TV commercials in which actors playing tobacco executives are shown falsely testifying that there is no connection between smoking and health, chortling over smoking-related deaths and expressing the need to expand their business by inundating children with marketing pitches.
As R.J. Reynolds executive Daniel W. Donahue groused in an op-ed article published recently in The Times, the commercials “portray fiction as fact in an effort to sway public opinion.” That is as concise a definition as I’ve ever heard of advertising, a service on which the tobacco industry itself spends about $8 billion a year, according to the estimates of the anti-smoking lobby. Much of that treasure chest, of course, has employed fiction posing as fact to portray a vigorous smoking habit as the key to social success, sexual allure and just plain coolness.
The Reynolds-Lorillard lawsuit, which asks a federal judge to put a stop to the California campaign, follows other similar shots that Big Tobacco fired across the bow of industry critics. The first target was the American Legacy Foundation, the Washington group whose “Truth” anti-smoking campaign is funded from the $206-billion Master Settlement Agreement reached between the tobacco industry and 46 states in 1998.
In 2001, Lorillard threw a conniption about a Legacy Foundation radio ad in which a teenage dog-walker called Lorillard’s offices and offered the dogs’ urine as a cigarette additive. (The industry had experimented with using urea, an ammonia-like chemical, to make nicotine more potent.) The company announced plans to sue Legacy, filed a complaint with the Federal Communications Commission and threatened to withhold a multimillion-dollar payment due under the settlement pact.
Last year Altria Group Inc.’s Philip Morris unit lashed out at the states of Utah and Florida for their own ad campaigns showing the industry wallowing in blood money. (Florida’s best-known TV commercial has the tobacco industry winning the Devil’s annual award for most lives claimed in a year, outpolling “illicit drugs” and “murder,” as admiring fans such as Adolf Hitler stand by.) In both cases, the company sent letters to state officials challenging the ads’ veracity, though it hasn’t filed suit.
Anti-smoking advocates have watched this trend warily, in part because the demonization of tobacco companies has become the sine qua non in anti-smoking advertising.
For one thing, these ads are effective. Experts have long known that commercials warning that smoking will make you sick tend to go in one ear and out the other. Portraying tobacco executives as venal and unscrupulous, however, apparently works magic at turning smoking into a socially unacceptable habit. California officials credit their ad blitz with helping to give the state the nation’s second-lowest smoking rate, after Utah.
These campaigns “basically connect the dots between the activities of real people and their health effect,” says the Legacy Foundation’s president and chief executive, Cheryl Healton. What the tobacco companies want to project, she maintains, “is a fantasy world” in which cigarettes “somehow spontaneously appear and spontaneously 45 million Americans smoke them, as if there’s no marketing machine or no real corporate motives that precede all of that.”
The industry has mustered a raft of arguments as to why the ad campaigns are illegitimate; in California these include the assertion that the anti-industry commercials violate the 1998 ballot measure Proposition 99, which levied a 25-cent surtax per cigarette pack to finance, among other things, “community health education programs.”
“The difficulty here is understanding how the vilification ads are a health education program,” Donahue told me. “The ads have gradually morphed into direct attacks” on the industry.
Yet the industry’s principal fear about these ad campaigns centers on their potential to poison the jury pool by shifting the blame for smoking-related illness from the smokers themselves onto the corporations sitting in the defendants’ docks. Given that tobacco manufacturers face about 4,500 pending actions nationwide, this is no small concern.
If the California lawsuit looks like the tobacco industry’s most comprehensive attack yet, the reason is that this state is where trial lawyers come to grasp the golden ring. Despite its low smoking rate, California still accounts for as much as one-eighth of the U.S. smoking population. That’s a lot of potential plaintiffs in a state where the generosity of jurors is world-renowned, and where the industry is already appealing $363 million in verdicts after a string of high-profile courtroom losses.
On the other hand, the companies’ contention that the California ads have destroyed their right to a fair and impartial jury falls a little flat in light of the most recent verdict here. In February, a Sacramento jury ruled in favor of Reynolds and Philip Morris and against a longtime smoker with cancer. Reynolds’ Donahue, for his part, contends that the outcome of the trial makes his point: At the companies’ request, the judge granted them greater latitude in weeding out jurors whose opinions of the industry may have been shaped by bad publicity.
In any event, the threat of huge California verdicts remains robust, which, it bears mentioning here, is a fairly recent development. Aficionados of California history will recall that for the decade between 1988 and 1998, this was a state in which Big Tobacco had a free ride past the courthouse.
The reason was the infamous “napkin deal” worked out at a Sacramento Chinese restaurant in the waning days of the 1987 legislative session. This unholy compact reached by the legislative leadership, insurance lobbyists and business groups barred consumer lawsuits over any product known to be “inherently unsafe,” such as alcohol and tobacco. (The bill also mentioned sugar, butter, and castor oil, just for laughs.) The first business day after the bill’s passage, the tobacco lobby made thousands of dollars in contributions to the campaign coffers of several important legislators, presumably by sheer coincidence.
The napkin deal was repealed in 1998. The litigation floodgates opened. And now we find ourselves watching as the industry tries to hold back the tide.
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Golden State appears on Mondays and Thursdays. Michael Hiltzik can be reached at golden.state@latimes.com.
