Up in Smoke: Ethical Issues
University of Hawaii at West Oahu
Thanh Nguyen
04/23/2012
The percentage of death related to
smoke issues increases as more and more people begins smoking. Tobacco is one
of the leading factors of premature and preventable deaths. Each day in the
United States, there are over 3800 young people under the age of 18 began to
light up their first cigarettes, and about 1000 teens under 18 years of age
begins daily smoking habits. Every year, there are an estimate of 443000 deaths
caused by smoking cigarettes equivalent to one every five deaths in the United
States. There are approximately about 90% of deaths in men and 80% of deaths in
women are caused by lung cancers from smoking. Smoking also has negative
effects on the America’s economy. It cost about 96 billion of dollars in direct
medical cost, and about 97 billions of dollars in lost productivity annually.
Additionally, cigarette also imposes a heavy toll on the smokers. It cost
roughly over 3000 of dollars for the smokers who smoke 1 pack per day. Well,
the number is just an overall estimation on an average. For people who smoke
more regularly, the cost is much higher. Because tobacco imposes a huge threat
to public health and financial cost to the U.S., the government tries to
prevent these preventable threats to the minimal by passing laws and acts. It
is not the act of big brother by the government, but rather an act to secure
the future of the U.S. The battle of politics against Tobacco Company involves
a lot of social and personal benefits. Therefore, these are many ethical issues
during this political battle. These ethical issues are described in the book:
Up in Smoke written by Martha A. Derthick, a former professor of government at
the University of Virginia.
Up in Smoke describe the process of
US policy making against the use of tobacco.
Most of the writing in this book analyzes and describes the events of
1998 tobacco settlement with the U.S. states. It describes the litigation of
the tobacco company and its policymaking coming in waves. The wave of “against
the big tobacco” fight is the part of the latest wave that analyze against the
tobacco companies and this industry. Most of the story focuses on lawsuits
brought by the state attorney general in the 1990s. In that litigation, the
keys players tried to negotiate a “global settlement” with the tobacco company
that would eventually require the adoption of the congress. However, the
settlement was not a success. In addition to the lawsuits, the FDA tried to get
some benefit from the tobacco company, stating some regulation that is similar
to the “global settlement”. However, the FDA’s effort was announced illegal by
the US Supreme Court. In the end, the tobacco industry entered into a
settlement called Master Settlement Agreement (MSA) for all US states to
resolve the case.
In the beginning of the book,
Derthick describes the dangerous effect and the pattern of cigarette use in the
twenty century. It all began with the Surgeon General’s Advisory Committee’s
report on smoking and health that confirmed the smoking hazards to one’s
health. After this report was published, the U.S. policy process began its
evolution. The government began to educate people about the health dangers to
control and prevent people from the use of tobacco. Derthick described this
policy evolution as “ordinary politics”. The evolution continued to develop
over the years. Eventually, the government began to impose banning signs on
radio and TV commercials. Most of the tobacco products were required to have
some type of warning on the label. In addition, smoking was banned in most of
the domestic airlines flights. In the same year, more strict regulations were
enacted in regard of smoking in some state and local governments. Legal cases
against cigarette companies had no results. The cases filed against tobacco
companies usually got delayed for all sort of reasons. It also cost a lot of
money for individual to suit against the tobacco industry. Thus, the policy
evolution from 1964 to 1993 was not meant to stop the tobacco industry, rather
the progress it made was meant to reduce the number of smokers.
Ordinary politics began to take back
seat in adversarial legalism toward the end of this period. This approach was
aided by the federal bureaucracy. C. Everett Koop was appointed as a surgeon
general. With this new appointment, the president Ronal Reagan began to take
smoking matter to the national level. The new surgeon general was calling for a
smoke-free society by the year of 2000 in 1984. Early in the 1990’s, David A.
Kessler was appointed as commissioner of food and drugs. Kessler made his
argument on the hazardous risk of smoking. He argued that cigarettes contain
addictive nicotine and it should be regulated by the FDA (Food and Drug
Administration).
In the mid of 1990’s, there was a
huge development for the tobacco companies. It was the increasing cooperation
of state attorneys general. The idea was for tobacco companies to get back
their cost on Medicaid cost associated with smoking. Mike Moore, an attorney
general of Mississippi was the first one to take a step on this ominous
development. He chose the most skilled tort lawyers from his judicial force to
acquire a settlement from the tobacco companies. From the state attorney
general’s perspective, this approach took the basic of the litigation to the
next level. It avoided the need of the legislative approval and utilized the
tort lawyers on a contingency-fee basic.
Derthick examined the concept of
adversarial legalism that changed the context of the politics. There was an
increase in smoking cause advocacy which was promoted by the major law school
activists. Derthick described this political development as nationalization and
mediaization of politics. It made the policy process became more amendable for
those who promoting causes. These activists were aided by the tort lawyers who
were successfully obtained huge fees from the tobacco companies. All those
factors had finally forced tobacco companies to make agreement on the MSA
(Master Settlement Agreement) with the states in 1997.
In Derthick’s book, the intended
contribution comes to the reader in the final chapter. She argues that it is
better to make tobacco policy by legislative process than litigation process. Derthick
stated that the previous settlements and the MSA were deeply flawed. These
settlements were made upon the interest of the private party involved. Those
policies are not made public before they are passed. Therefore, there were no
public comments on these settlements in advanced of the adoption. They are only
available on the internet. However the documents cannot be retrieved by anyone
except for the lawyers. In addition, there is no official record on the debate
of the contents, or justification, and legislative history as a guide to the
authority’s intentions.
There are two major complaints about
this issue. First, it is true that MSA certainly can impose tax on cigarettes
without any legislature votes for such tax. But the Industry settlements of
these cases have much of the same effects of as the defendants are concerned. The
policies made via litigation could be viewed as vigorous enforcement of the
government’s laws. Second, the complaint can be made upon the tobacco
legislation. In 1987, a statue of California Legislature was adopted and gave
the tobacco companies certain immunity to the laws. Some deals were made to the
private parties to pass that statute.
Derthick’s major concern is on the
Tobacco Settlement. It may be a harbinger of the movement of adversarial
legalism into the government policy. Our government policy relies heavily on
legislative policy process that reflects or represents the population. This
development could become a serious threat to our formulation of normal policy.
On the other hand, the MSA was trying to negotiate with the tobacco industry
without any public input. Every agreement should require the approval of the
congress. However, state attorneys generals settled into the MSA without any
congress approval which later on ratified by consent agreement by the state
courts. The tobacco industry paid more
than 200 billion of dollars to the states for a period of over 25 years.
Additional payment was paid by the tobacco companies to grant perpetuity to
protect the tobacco companies and the industry against all the further lawsuits
against the tobacco industry by the state. The tobacco industry promised not to
challenge the tobacco research and the constitutionality of the settlement in
return. It was considered a sweet deal for the tobacco industry in which both
tobacco companies and the private parties benefit from the deal. This tobacco
policy was entirely made by circumventing the legislative process. This deal
provided billions of dollars in legal fees for the private parties.
Following this issue, Derthick
concerns about the consequences of adversarial legalism. It pushes the
legislative policymaking to the margins. In addition, it potentially politicizes
the judicial branch thoroughly. The vivid example for this concern is the
billions of dollars in legal fees were reaped by tort lawyers. Another salient
example would be the Florida state legislatures sometimes intervenes the
litigation directly by making laws which makes it easier in making judgments on
the tobacco industry. Now the question is on the government system. Most people
in the neutral position would probably agree that the state government legal theories
were very uncertain in this case against the tobacco industry. That could be
the reason why that case was solved merely by the litigation that based on the
contingency fee basic.
In the opinion of the public, there
is a possibility that the combination of the tort attorneys and states will
eventually seeking other targets as how they did with the tobacco industry.
There is always money and power involve. The MSA is the vivid example. The
purpose of this agreement was to weaken the tobacco industry. However, in the
eye of the public, the MSA approach changed the formulation of the American
policies and pushed the laws to its margin. Tobacco companies ironically
benefited from the MSA which supposed to disadvance the tobacco industry.
Obviously, there was something wrong with our legal system. Questions on our
government and legal system rose. Was the government really doing its job to
protect the benefit of its citizens? Or did it act solely on some individuals’
benefit? Ever since the MSA was passed, the tobacco industry obtained some
legal immunity to protect its benefits. Tobacco companies got some certain
perpetuity of protection from the state lawsuits. The price the Tobacco
industry had to pay was just a small fraction compared to the advantages and
benefits tobacco companies gained from the MSA.
Up in smoke was a mixed bag of all
the factors and elements in regarding of smoking issue. It focuses on the
public health and the flaws of the government’s legal system. In general,
smoking rate was decreased in America society. However, in my opinion, I think
the states prefer not to see the decrease in the tobacco sales. This way, the
local governments can get substantial payment from the tobacco industry. They
can impose heavy tax on tobacco sales. As the matter of facts, many states have
increased the tax on cigarette drastically. Public health will never be the
main concern for the government. What they interest in is the actual benefits
they can get out of the industry. There are signs, banners, and TV and radio
commercials that warn people about the danger of smoking. If the government
really concern about the health of the public, it would have banned smoking
entirely. Unfortunately, it has been proven so far that benefit of the public
is not comparable to the government interests and benefits. Although the idea
of smoke-free society is promoted by the government, smokers are still everywhere.
Local governments may act upon on the restricting of smoking, but the
possibility of the national litigation that may result in heavy penalty is very
slim. Lawsuits against smoking may be possible, but the option is very limited.
Chances that private plaintiffs will win against the industry are very small if
not nearly impossible. The benefits that the tobacco industry offers to the
government are potential. It may even affect how the government system runs at
a certain point. Therefore, in my opinion, smoking will never be eradicated
entirely.
Bibliography:
Derthick, Martha A. (2012). Up in
Smoke: From Legislation to Litigation in Politics. Washington, DC: CQ Press.
U.S. Department of Health and Human
Services. Preventing Tobacco Use Among Youth and Young Adults: A Report of
the Surgeon General. Atlanta, GA: U.S. Department of Health and Human
Services, Centers for Disease Control and Prevention, National Center for
Chronic Disease Prevention and Health Promotion, Office on Smoking and Health,
2012.
