Safer Smokes on the Way, but Only One State Benefits

Tobacco companies are gearing up to produce a new breed of cigarette that will be less apt to start fires, but only for the New York market -- thanks to a first-of-its-kind state law aimed at cutting the toll of deaths and injuries from smoking-related fires.

Industry executives are vowing to meet a deadline this month to begin delivering the less combustible smokes, but they will continue to ship standard versions of their brands to the 49 other states.

That could spark damage suits by victims of cigarette fires in other states and perhaps more laws like New York’s.

After staunchly resisting fire-safety laws for more than two decades, industry officials could be forced to campaign for federal regulation to avoid the chaos of different standards state to state.

“The momentum is increasing towards passage of a national law,” said Rep. Edward J. Markey (D-Mass.), who is co-sponsoring a bill with Rep. Peter T. King (R-N.Y.) to apply the New York standard to the rest of the U.S.

“The tobacco companies are living on borrowed time,” Markey said. “Unfortunately, people are dying during that time.”

Spurred by New York’s example, Canadian authorities have issued draft regulations that could require fire-safe cigarettes by next year. The modified smokes typically use thin rings of paper outside the wrapper that cause the cigarettes to go out when not being puffed.

New York’s deadline of June 28 comes 25 years after fire-safe cigarette legislation was first introduced in Congress. In the years since, while regulatory bills languished in Congress and in legislatures of several states, including California, some 25,000 Americans perished in fires sparked by unattended cigarettes, according to annual estimates by the National Fire Protection Assn. The death rate has tapered off some, but cigarettes remain the leading cause of fatal fires in the U.S., claiming about 800 lives a year and causing scores of disfiguring injuries, according to fire safety experts.

A typical scenario involves a careless smoker dropping a lighted cigarette onto bedding or a sofa, where it can smolder unobtrusively for as long as 30 minutes before a fire erupts. In many cases, not only the smoker but also innocent bystanders die in such fires.

Wary about consumer reaction to the modified smokes, cigarette makers have no plans to offer them more widely, a position that industry foes have roundly attacked. The companies contend that the problem is strictly one of careless smoking, not unsafe designs. And they say the newfangled smokes may not help much -- particularly if they lull people into careless behavior.

“It would be irresponsible for anyone ... to think that cigarettes in New York” won’t start fires, remarked Steven Watson, vice president of external affairs for Lorillard Tobacco Co., maker of Newport and other brands.

State officials insist that the law, though not a cure-all, will save lives. “We will have a safer cigarette on the market,” said Peter Constantakes, assistant secretary of state for public affairs. “It’s a great accomplishment for New York state.”

Tobacco companies acknowledge that they have consciously designed their products to go on burning when not being puffed. That spares smokers the nuisance of relighting -- and results in more cigarettes being consumed.

But it also increases the risk of unattended cigarettes starting fires. By contrast, the New York-style cigarettes will be more likely to go out on their own.

One impediment to the new law is that smokers who don’t like the modified smokes should have little trouble finding their old standbys. With a state cigarette tax of $1.50 a pack and an additional New York City tax of $1.50, many smokers already shop across the border in New Jersey or Connecticut or tap a flourishing black market that includes cigarettes bootlegged from low-tax states or purchased tax-free over the Internet. As a result, officials acknowledge, it’s clear that cigarettes that aren’t designed to be fire-safe will leak into New York.

Authorized by a law passed in 2000 and several years in the making, the New York standard requires each brand to show fire resistance, as measured by a test in which lighted cigarettes are placed on a material similar to furniture fabric to see if they will self-extinguish.

Tobacco companies plan to comply with variations of “banded-paper technology,” a process already in use in one commercial cigarette -- Philip Morris USA’s Merit brand. It involves placing ultra-thin rings of paper or a starch-like material at intervals around the cigarette wrapper. The bands restrict the flow of oxygen to the burning tip, essentially acting as firebreaks or speed bumps to slow the burn and reduce the heat transferred to fabrics.

Although long resisted by the big tobacco firms, the law actually should help them in at least one way. With cigarette taxes on the rise, the industry’s Big Four -- Philip Morris, R J. Reynolds, Brown & Williamson and Lorillard -- have been losing market share to small producers of discount brands. Lacking the advantage of economies of scale, some of these small fry have decided it will be too hard and expensive to meet the standard and will leave the New York market to the big boys.

Star Scientific Inc., based in Chester, Va., is among those intending to pack it in, said Sara Troy Machir, a company vice president. “I think it is inevitable that it will decrease competition.”

Before passage of the New York law, tobacco firms had repeatedly swatted away fire-safe bills in Congress and several states, including California. In 2000, for example, then-state Sen. Adam B. Schiff, a Burbank Democrat and now a congressman, sponsored a bill that was killed after intense industry lobbying against it.

Internal memos show that the industry’s success resulted largely from an ingenious alliance with fire safety groups, which gratefully took millions of dollars from the tobacco industry for fire prevention projects -- then lined up to oppose cigarette regulation.

By 1991, the industry had built “relationships with more than 500 key [fire] departments,” and had provided grants to more than 50 large fire departments, according to a memo from the Tobacco Institute.

As a result, “many former enemies in fire service defend and support us,” said the memo, which advised keeping the achievement under wraps. “We can work more freely with fire service without media scrutiny,” it said.

Up to now, such documents have caused few difficulties for cigarette makers in court. Only about 15 lawsuits have been filed over cigarette fires, and all failed but one -- a Texas case involving a severely burned child that Philip Morris settled for $2 million. A major hurdle for plaintiffs has been the need to prove that tobacco firms were capable of producing cigarettes that might not have caused fires.

The New York standard could make the companies more vulnerable to such suits, said Stephen Gillers, professor and vice dean at New York University School of Law. “It shows that [making a safer smoke] can be done, and it can be done profitably, because you’re still selling cigarettes in New York.”

Andrew McGuire, head of the Trauma Foundation at San Francisco General Hospital, who began crusading for fire-safe cigarettes in 1979, predicted that the industry would be unable to make safer products “just for New York, and not have the trial lawyers have a field day in 49 other states.”

Tommy Payne, an executive vice president with R.J. Reynolds, said he did not expect the law to have a “material impact” on litigation.