Tobacco Industry’s Growing Power: Bad Acts, Lessons Learned, and New Tricks

black and mucus filled lungs nearby (Photo credit: Let Ideas Compete)

Fifty Years of Lying

The first speaker at the 2012 American Public Health Association (APHA) conference’s two-hour session on tobacco was Ms. Sharon Eubanks, the RICO lawyer who successfully tried the tobacco industry for fraud under the Clinton administration. She described how that case was prosecuted, in order to share lessons learned when dealing with the tobacco industry. She said that, for many people, it is hard to believe that “fifty years of lying” occurred, and to grasp the lengths to which the tobacco companies are willing to go. The history of the civil case she directed is that in 1979, the tobacco industry was first prosecuted as a criminal case, which failed. Out of that trial, a huge amount of evidence and body of record was created. However, those many documents are still locked up and were not available to her group’s case. In September 1999, the Attorney General announced the launching of their civil case. The tobacco industry’s response was to deride the case. The issue is that legal “bad acts” may be permissible under the law. The justice department’s civil case intentionally was tried under a judge, and was not a jury trial. In essence, the case was a fraud case – that the tobacco industry was lying repeatedly, and that the evidence supported a presumption that, unless stopped, they would continue to lie. Ms. Eubanks said that, in the end, second hand smoke was a large part of their case. At the start of the case, however, the government felt the “science isn’t there” for second hand smoke. However, Ms. Eubanks, who eventually became the lead attorney, was committed to using second hand smoke data, so she deliberately wrote a letter with the filing, specifying that “smoking” includes all forms of smoking.

In response to the case, the tobacco industry used extensive lobbying efforts, including attempts to have the litigation’s budget cut. The industry tried to prevent the use of many of their own documents based on attorney-client privilege, despite the fact that the documents were readily available online. The industry used attorneys extensively to “cloak” information, with attorneys being present in research and “science” documents and discussions to allow for claiming attorney-client privilege. However, Ms. Eubanks pointed out, the law has a caveat that says these protected activities are no longer protected if the lawyer should have known that fraud was being committed. The justice department was able to use information they got from online copies to argue that the lawyers should have known and were a part of the process that constituted fraud, thus opening up these documents to the court.

She ended her talk by saying that existing regulations are still not being enforced, and with a call for regulatory bodies (such as the FDA) to use laws the that already exist to more effectively regulate tobacco.

Did The L.A. Times Single-handedly Defeat Prop 29?

Stan Glantz discussed his analysis of June 2012’s Prop 29, and the lessons it presents, especially for public health and the media. Prop 29 was a $1 tax increase that was very narrowly defeated by the tobacco industry. Dr. Glantz’s pre-talk conflict-of-interest disclosure included the fact that he was involved, late, in the attempt to pass Prop 29. Prop 29 originally was not begun by scientists or public health sponsors, but, instead, by Don Perata, who was, at the time, Senate Pro Tem. Dr. Glantz said that Mr. Perata originally wrote Prop 29 to benefit construction, “for reasons that were not clear.”

Health groups got involved after the Proposition movement began, and changed it so that 70% of the revenue would go to cancer prevention. The measure lost by only “4/10 of 1%.” Tobacco industry spent approx. $40 million dollars to defeat it. Of the money to defeat Prop 29, $1.1 million came from the Republican Party, but the vast majority of the money came from tobacco companies, predominantly from two major tobacco companies.

The “Yes” side spent approximately $12 million, most from the American Cancer Society. And the majority of that funding came in late. But, Dr. Glantz said, “There were many reason Prop 29 may have lost, but lack of money wasn’t one of them.” On the “Yes” side, the funds were distributed across 7 major groups. Dr. Glantz also said that this model is typical – that the bill is created and promoted to benefit an interest group, like construction, and then the health sector ends up having to pay for it. His advice is that if health groups are going to have to pay to get these bills passed, then “we should be driving the train.”

The “Yes” side framed the argument as a tax to cure cancer. The “No” campaign hammered on the fact that the proposition was “flawed” and that the state’s budget issues were too pressing to be distracted by trying to cure cancer. The most effective ad against Prop 29 featured Dr. Ladonna Porter. Dr. Ladonna Porter was pivotal. As Dr. Glantz said, she was “a very appealing spokes-doctor” and her three-part message was that there is no money for cancer treatment in Prop 29, that the money will be sent outside the state of California, and that it was opposed by several taxpayer groups.

Dr. Glantz points out that there was no rebuttal to this argument. At this point, Dr. Glantz became involved late in the campaign. He said he was very frustrated with their “soft-focus” message of curing cancer, and by the campaign’s lack of response to Dr. Porter – so much so that he said he was filmed for an ad where “they had to do 5000 takes just to get one where I was not smirking.”

Dr. Glantz pointed out Dr. Porter’s past history on his blog, specifically about her track-record of testifying against cleaning up the rocket-fuel contamination of a water supply. At that point, Dr. Porter was pushed off a state board and her ads were pulled but “it was too late.”

Dr. Glantz also said that the tobacco industry also tried to stay “invisible” by “hiding behind third parties,” which he noted is a frequent tactic of theirs. Quotes in the media were almost always attributed to taxpayer groups, or the Republican Party, despite the fact that the industry was massively bankrolling the opposition. Dr. Glantz also said that the campaign suffered from the L.A. Times not endorsing Prop 29. The lack of endorsement was “heavily advertised” by the No campaign, resulting in a decrease from a 14 point to a 5 point spread at the time of the ads. Given the narrow margin by which it was defeated, he feels that Prop 29 would have passed if the endorsement had occurred.

So, in the end, why did Prop 29 lose? Dr. Glantz said there were three reasons: 1) he felt strongly that a weak media campaign was a major issue; 2) the L.A. Times taking a no position was “incredibly important;” and 3) the media was “lazy” and let the industry hide in plain sight.

Additional lessons learned for Dr. Glantz are that health groups need to be pro-active. In addition, the public is much more likely to support legislation if it is seen as “doing something about tobacco,” rather than “taxing smokers in order to do something in general for the public.”

Is Tobacco The New Medical Marijuana?

Dr. Robert Proctor spoke about the case for tobacco abolition, a new and emerging approach to limiting tobacco’s public health consequences. Dr. Proctor emphasized that this approach is a ban on the sale of cigarettes, not the use. If you wanted to grow, and cure, your own tobacco, you could. He said that there are six justifications for taking an abolition approach to tobacco. His points were:

1) Tobacco is the deadliest object in the history of humanity, with 6 million people dying per year. It will be a great victory if we can keep the numbers under 300-400 million.

2) Tobacco is a defective product. He emphasized it is dangerous “by design.” Cigarettes are also addictive by design. The FDA could require that they be produced with nicotine at a sub-addictive level. Phillip-Morris has created the technology to make a sub-addictive level of cigarette.

3) Tobacco smokers rarely inhaled before the 19th century. Smoking tobacco only became possible in the 1830’s. Uncured tobacco is too acidic to be inhaled. Smoke was only inhalable after tobacco was cured, which allowed it to be less acidic and inhaled more deeply. The act of inhaling smoke, by itself, is damaging. A regulation that prohibited any smoke with a pH lower than 8 to be produced by tobacco could prevent smoking. Passing those two laws alone, per Dr. Proctor, would do more to save lives than any other tobacco control activity.

4) The tobacco industry is a powerful, corrupting force in society. The industry has been documented to sponsor fraudulent research, corrupt the media, and has corrupted the information environment, including for its own employees. From 1969: “Doubt is our product since it is the best means of competing with the ‘body of fact’ that exists in the mind of the general public. It is also the means of establishing a controversy.” Cigarette manufacturers have even managed to thwart the Navy’s attempts to go smoke free on ships until only about a year ago.

5) Tobacco is having negative and sometimes devastating effects on the environment. Tobacco companies have funded global change denialism research. Stopping the flue-curing tobacco alone is the equivalent of taking millions of cars off the road.

Dr. Proctor states that one of the biggest arguments in favor of abolition is that smokers do not like their habit. Most smokers will state that they do not like the fact that they smoke and wish they could quit. The number of people who enjoy smoking is very rare. This phenomenon is so well-known within the tobacco industry that the small subset of people who actually enjoy smoking are called, by the industry, “Enjoyers.” “Smoking is not like drinking, it’s rather like being an alcoholic,” is a quote from a tobacco executive provided by Dr. Proctor.

So would tobacco abolition result in organized crime involvement, or become another failed War On Drugs? Dr. Proctor said the industry has been promoting this argument. But he noted that, historically, laws to ban cigarettes have been allowed to stand, even when challenged – these laws were only rescinded by local communities in response to a desire for tobacco revenues, and because of persuasive arguments at the time from the tobacco industry. The arguments from the industry for repealing these laws then were that “if our product was harmful we would stop making it,” with these types of explicit quotes dating up to as recently as 1986. These statements from industry were based on industry-wide scripts that instructed spokesmen to “reassure the public.” These statements were often made in public and under oath.

Abolition is easier than banning menthol, or regulates filters. Currently universities can and do ban the sales of cigarettes. Dr. Proctor also pointed out that “one of the problems with health groups is that they don’t actually know how cigarettes are made.” He encouraged the audience to find out, to assist in how to approach issues of banning sales and using laws to help with tobacco control. For example, the German tobacco industry researched extensively the effect of pH on inhalation, from which much of the information about pH’s effects on smokers came.

At the current time, every community in America, per Dr. Proctor, still has the legal right to ban the sale of tobacco. Abolition is not a radical idea. As Dr. Proctor points out, “it would only help the industry to live up to its long-held promise.”

Zombie Tobacco-Industry Tricks

Cynthia Hallett of No Smoke spoke about the resurrection of some of the tobacco industries’ oldest tricks. Deja vu seems to be the norm for those who are working in tobacco control. She gave several examples:

1) Ventilation as a solution, especially in casinos. Ventilation, however, only deals with temperature and comfort, and does not mitigate the health effects. She noted that 19 states include casinos in their smoke-free work-place laws, but, in general, the states that do are not the “heavy-hitters” such as Atlantic City, where the laws say, for example, that 3/4 of the floor must be smoke-free. Local governments are getting push-back when they try to pass these laws, with industry saying that local governments don’t have the right to regulate these issues, only the state does. Local governments do have this right, but they are wary of getting into a battle with industry.

2) Lawsuits or legal threats. She noted that the industry has gotten aggressively involved in blocking both Graphic Warning Labels (FDA), and Corrective Statements (RICO remedy).

3) New products. She said that one of their pushes is promoting e-cigarettes in smoke-free environments. These products are not regulated by the FDA. Other tobacco products are also being pushed. Diversification is the new approach.

4) Attacks on successful tobacco programs, including claims of illegal lobbying, as well as attacks on successful measures. In response to this, the W.H.O. had a recent global No Tobacco day whose campaign focus was the topic of tobacco company intimidation.

Ms. Hallett noted that the policy implications of all these actions are that there are fewer than expected local laws happening. There have been no new state laws since 2009. These intimidation tactics lead to self-censorship, which leads to inaction or back-sliding. She also said that “viewing industry as stake-holders is very dangerous.” The example given was the FDA’s approach. Ms. Hallett asked, “how long are we going to allow these convicted racketeers to have a voting or even non-voting role in these issues?” She strongly cautioned against “working with” industry.

The good news is that about 49% of the U.S. population is protected by a workplace, restaurant or bar law. The bad news is that 19% is not at all. An approximate 30% of the population have a mix of protection. That 30% number has not changed in a number of years, despite the science to support an expansion to protect all workers.

New policy approaches include such emerging issues as pushing for smoke-free multi-housing units. Successes include 132 communities which have smoke-free beaches, 231 communities and 6 states/commonwealths have smoke-free parks. A total of 825 college campuses are smoke-free, and many also completely tobacco-free. She emphasized that the industry is losing “the battle of smoking acceptability,” but the push-back from industry may threaten all this progress.

Finally, Dr. Glantz talked about issues on a national level where, as he put it, at the FDA “the lawyers are running the science.” He states that laws are not being implemented, including banning menthol, or going to color-coded labeling of products. He states that health groups may need to sue, or get more involved because, as he noted, “the bad guys often win because the good guys didn’t show up.”

Will you show up? Check out the local tobacco issues in your area.