The Potential Impact of the Proposed Settlement Agreement On Black Smokers and the Black Community in the United States of America
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The Potential Impact of the Proposed Settlement Agreement On Black Smokers and the Black Community in the United States of America
Prepared by Charyn D. Sutton
The Onyx Group
July 1997
Introduction:
The Settlement Agreement, as agreed to by attorneys general of 39 of the 50 states, the attorney general of Puerto Rico, other attorneys involved in current litigation against tobacco companies, and representatives of major tobacco companies, contains a number of provisions that have the potential to directly impact Black people in the United States. This document provides a review and assessment of those provisions and includes an assessment of health, social, cultural and economic issues.
The majority of paragraphs in this document consist of a statement summarizing a provision of the Settlement Agreement in bold, followed by discussion of the potential impact of that provision in italics. The document concludes with the identification of two key issues that are not addressed in the Settlement Agreement and a list of eight specific items that should be addressed by the Administration and by Congress in their crafting of a tobacco policy for this nation.
Review and Assessment:
The Settlement Agreement, as currently written:
Bans all billboard advertising of tobacco products, not just the tobacco advertising on billboards in places close to schools and other locations frequented by children.
This is something that has long been important to Black communities. Billboard advertising tends to be far more extensive in Black communities -- especially the smaller versions (called eight-sheets) that are on the sides of buildings. Also, tobacco billboards are frequently on public transit which is used by large numbers of low-income people, and especially by Black children in major cities. In addition to attracting youth, these tobacco billboards serve as constant cues to adult smokers and make quitting more difficult. While the Baltimore victory in the Supreme Court makes it more likely that local communities will act to ban tobacco billboards, the process may be speeded up through the Settlement. An agreement by tobacco industry to end the use of billboards may be easier to get enacted into law than other approaches. The separate state consent decrees could bypass First Amendment issues. In most cities, the small billboard companies with specialized in eight-sheets (some of which were begun by Blacks) have been bought out by larger concerns, so this is not an area where Black-owned businesses will be affected. However, tobacco companies have underwritten the costs of billboards promoting Black groups, like the NAACP and the Urban League, and this resource will likely be lost.
Eliminates all tobacco advertising using cartoon symbols (like Joe Camel and Willie Penguin) and all tobacco advertising using people (as with the Newport and Kool print advertisements).
When the cartoon-style Kool Penguin was introduced in the 1960s, it was enormously popular with Black teenagers and adults and was part of a marketing campaign that made Kools the #1 cigarette brand in the Black community for many years. Newport, which is currently the #1 cigarette brand in the Black community has used images of Black people in virtually all of their advertising. Brown & Williamsonís efforts to resurrect the cartoon Penguin as a streetwise symbol failed in test-market. The use of "Smooth Joe" to advertise a menthol brand of camels lasted just six months in its national roll-out. Community-based efforts to end this insidious marketing campaign, which threatened to increase the relatively low smoking rates of Black youth, were the basis of the Say No to Menthol Joe Community Crusade. A possible negative economic consequence of enacting this provision would be that eliminating cartoon and human image advertising would probably reduce tobacco-related advertising revenues for Black-owned newspapers and magazines.
There is less reason for tobacco companies to advertise in Black media unless the targeted advertising contains people or cartoon images that are identifiable as Black. A potential plus for Black media is that funding available for counter-advertising could be used to offset some of the revenue losses from any reduction in tobacco company advertising. The elimination of cartoon and human images in tobacco advertising may also decrease the amount of in-store promotional items that are targeted to African Americans, thereby lowering the incentive payments that store-owners in Black communities receive for displaying these items. This could directly impact profitability of small stores in inner city communities.
Bans all non-tobacco merchandise, including caps, jackets or bags bearing the name, logo or selling message of a tobacco brand, including gifts and proof-of-purchase promotional campaigns. The Food and Drug Administration regulations on tobacco products contained this provision. However, implementation of the FDA rule, originally planned for August 28, 1997, has been delayed due to litigation brought by the tobacco industry. This is an important provision for Black people because tobacco-industry promotional items are quite popular in Black communities. NAAAPI (National Association of African Americans for Positive Imagery) has been leading the fighting against these items through activities like T-shirt Exchanges and coined the term "unpaid, walking billboards."
Bans sponsorships, including concerts and sporting events, in the name, logo or selling message of a tobacco brand. Tobacco industry sponsorships have been quite important to many Black cultural programs, although not necessarily for Blacks in professional and amateur sports. Although language in the Settlement Agreement would permit sponsorships to continue under the corporate name, this is unlikely. In the past, funds for most sponsorships of civic and cultural activities have come largely from tobacco profits and have been used primarily to build goodwill for tobacco interests, even if they have used the corporate name. In addition, many sponsorships in the African American community have been brand-specific: Kool Achievement Awards, Benson & Hedges Blues Concerts. This provision of the Settlement Agreement, if enacted, may have a disproportionate impact on Black musicians and dance companies since tobacco companies have traditionally been major sponsors of Black cultural events. Replacement funds should be made available in instances where other non-tobacco funding cannot be secured and Black audiences will have to be cultivated in order to provide revenues that these programs require to survive and prosper.
Bans direct and indirect payments for tobacco product placement in movies, television programs and video games and prohibits direct and indirect payments to "glamorize" tobacco use in media appealing to minors, including recorded and live performances of music. These are media that attract Black youth. Removing the tobacco influences in these areas is an important step toward keeping children and youth tobacco-free. This is not an area that will impact Black business ownership in any major way, except possibly tobacco industry support for Black-owned advertising agencies and some Black-owned recording labels.
Bans most self-service tobacco product displays. This provision may have disproportionate negative economic impact on small Mom & Pop stores in inner cities since tobacco often provides a significant profit margin and the availability of cigarettes often leads to purchases of other items. The removal of displays will have an additional impact on small retailers because the incentives they receive for these displays often provide additional revenues, which can be sizeable. However, the presence of self-service displays have been shown to contribute to shoplifting of tobacco products and many Black parents are concerned about any incentives that could increase unlawful activities among Black youth, particularly in view of the disproportionate penalties that the justice system imposes on people of color in this country.
Institutes tough, national licensing requirements for merchants selling tobacco products.
This provides communities with a mechanism to address merchants who are breaking the law. Such mechanisms can be particularly important in inner cities, where stores that illegally sell tobacco often illegally sell alcoholic beverages to underage youth. Tobacco licensing provides an additional mechanism for leverage.
Establishes a Scientific Advisory Panel to determine whether there is a threshold below which nicotine does not produce drug dependency. This may be important since estimates are that as much as 10% of Black regular smokers are "chippers"-- sporadic smokers who are not addicted to nicotine and who smoke relatively few cigarettes in week or month. Also, this may facilitate the determination of whether there is a measurable difference between tobacco "use" and tobacco "abuse" as is the case with alcohol. These guidelines may also facilitate closer collaboration between alcohol and tobacco prevention and treatment programs in Black communities.
Mandates that no cigarette shall be sold in the United States which exceeds a 12 mg "tar" yield, using the testing methodology now being used by the Federal Trade Commission.
Current brands preferred by Black smokers tend to be high in both "tar" and nicotine. Both Newport (#1 among Black smokers, especially teenagers) and Kool (#2 among Black smokers) average 17 mg. "tar" per cigarette (Kings). Since the tar is considered one of the harmful ingredients in cigarettes, lowering the tar levels to a 12 mg. maximum could benefit African American smokers. It is not clear, however, whether lowering tar levels would have a significant health impact on Black smokers.
Extends coverage to "roll your own," "little cigars" and "fine cut," etc.
An important concern to many African Americans is that the Settlement Agreement does not yet cover cigars. This is an important issue since cigar displays are proliferating in inner city communities and cigar use is often linked to marijuana use among Black teenagers.
Allocates $100,000,000 annually to fund research and development of tobacco prevention and cessation methods. There has been little research done on the effectiveness of various quit approaches for African American and other Black smokers, although there are some existing models. Research work should be focused in this area, since Black smokers have higher morbidity and mortality from tobacco use than most other groups. The available of this funding would also offer an opportunity to study the impact of menthol in cigarettes, since mentholated cigarettes are smoked by the majority of Black smokers and may be associated with more negative health outcomes.
Allocates $75,000,000 annually (beginning in the second year) for 10 years to compensate events, teams or entries in such events, who lose tobacco industry. Sponsorship and/or funding and that cannot replace that funding from other sources, provided that the funding provided under the auspices of the Settlement Agreement is used to promote a tobacco-free theme. It is critical that any replacement dollars also should be available to fund cultural and educational programs in African American and other communities that depend heavily on funding from tobacco companies in addition to sports and music events that are "sponsored" by tobacco companies. Programs qualifying for such replacement monies would include visual and creative arts and educational and scholarship programs, such as the United Negro College Fund. This may require a different allocation formula.
Allocates $500,000,000 annually for multimedia campaigns to discourage and de-glamorize tobacco use with attention paid to the needs of particular populations.
This provision does address the need for media campaigns directed at "certain populations" and allows for the purchase of paid media which can be used to purchase time and space in minority-owned media. The enactment of this provision could benefit African Americans in general and Black advertising agencies that are willing to break their ties with tobacco companies.
Funds large-scale smoking cessation programs with a focus on "special populations."
Poor and nonwhite groups have not been served adequately by existing smoking cessation programs and have been short-changed by the tobacco controlís wholesale "paradigm shift" to policy issues. The importance that the Settlement Agreement places on cessation programs could offer major benefits to African Americans and others of African descent in this country. There is a clear need to develop programs for "special populations" like African Americans, because Black smokers differ in key ways from the general population and so need tailored materials, classes and approaches to increase quit rates. The explicit mention of "special populations" in the Settlement Agreement recognizes this reality and offers financial resources for this purpose.
Allocates $1 billion per year for the first four years and $1.5 billion thereafter to a Trust Fund to assist individuals who want to quit their use of tobacco. The Secretary of Health will set regulations governing eligibility and how programs offering cessation services will be governed. Smoking cessation programs and materials have had a low priority in recent years, with the tobacco prevention movement shifting its focus to policy issues and away from individual treatment. This has had a negative impact on groups that still have high rates of smoking including Black adults, Native Americans, and women. In addition, there have been difficulties in providing government funding for African American cessation efforts that included references to religion, prayer and spirituality because of issues related to separation of church and state. The availability of these funds for culturally-appropriate cessation programs for Black adults and other groups with high smoking rates would be a positive step toward reducing the health-related risks of tobacco use in poor and minority communities.
Allows the FDA to adopt "performance standards" that would not permit the total elimination of nicotine in less than 12 years and that also would mandate certain requirements: a) clear health benefit, b) technologically feasible, c) no creation of a "black market" for cigarettes and smokeless tobacco.
This is the provision that has caused the most concern among tobacco control advocates because it restricts the ability of the FDA to move immediately to ban nicotine-containing tobacco products. However, the potential of black market sales of cigarettes to disrupt community life is a real possibility for low-income, Black communities. The power of nicotine addiction and the potential of cigarettes as contraband is already being seen in smoke-free prisons, where cigarettes are contraband and go for as much as $60 for a pack of 20 cigarettes -- an exorbitant amount given the low level of prison wages. Cigarette smuggling already has a niche in many poor communities and given the high unemployment rates in inner cities, may be seen as an attractive way to earn a living. Therefore, the requirement that the society take steps to assure that any decision to ban or severely restrict tobacco products does not create widespread opportunities for illegal tobacco sales in communities already hard-hit by illegal drug and alcohol sales is important. Any action to ban or severely restrict the availability of cigarettes to adults should be accompanied by the implementation of culturally-appropriate cessation programs and nicotine replacement products that can significantly reduce the numbers of persons using tobacco regularly to avoid creation of large-scale, illegal marketing of tobacco.
Provides financial assistance and identifies effective programs, techniques and devices to help current tobacco users quit. Providing financial resources to assist smokers would be beneficial to low-income individuals. This funding also could be utilized to fund a national hotline, modeled on the Cancer Information Service, that could provide brief counseling, self-help cessation materials and referrals to cessation programs. The American Lung Associationís pioneering work with Black church groups and Black women smokers and the smoking cessation guide Pathways to Freedom that was developed under a grant from the National Cancer Institute could be used as the basis for further development, including uses of nicotine replacement products in ways that address cultural differences.
Permits individuals to sue for compensatory damages but designates that punitive damages would be part of the overall settlement, caps the amount that can be distributed in a given year, and eliminates the option of class action suits.
Rather than having punitive damages go to individual smokers and their families, the punitive damages would go to society as a whole to be invested in programs to help smokers quit, replace funding for community events and activities formerly bankrolled by tobacco companies, provide research into cessation techniques and less hazardous tobacco products, and develop counter-marketing campaigns to prevent young people from beginning tobacco use and convince current smokers to quit. It is not clear whether the number of Black participants in class action suits is proportionate to the percentage of Black people harmed by tobacco overall. If that is not the case, there may be more opportunity for equity if punitive damage funds go to society as a whole rather than to individual smokers and their families. There is widespread concern that the elimination of class action suits and punitive damages to individuals as a mechanism to address major issues may set an unwelcome precedent, particularly in areas other than tobacco where such suits are a critical part of the strategy and where classes tend to be comprised primarily of Black and poor people, such as suits around issues of environmental justice. However, given recent court setbacks that the Black community has experienced in areas of affirmative action, set-aside legislation and voter redistricting, there tends to be less confidence among Blacks in the judicial process as a remedy for social ills than was the case in from 1954 until the end of the 1970s.
Additional Issues:
There are two additional issues that were addressed in the "Statement by Communities of Color in the United States on Private Negotiations Toward a Proposed ëSettlementí with the Tobacco Industry" that was issued in May 1997. Recognition of the importance of these issues is critical to any assessment of the impact of the Settlement Agreement and subsequent action by Congress on items contained in the Settlement Agreement.
In the statement, Communities of Color representing African Americans/Blacks, Latinos/Hispanics, Native Americans/Alaskan Natives and Asian/Pacific Islanders said:
With respect to the issues being negotiated by the Attorneys General, the major reason for the litigation is that public monies are being spent on health services to persons with illnesses caused by tobacco. A disproportionate number of the individuals who receive Medicaid-funded health care are low-income and are from our racial, ethnic and tribal communities. We are concerned that a large monetary settlement will only shift the burden of payment from the general public to individual smokers as tobacco companies raise prices on their addictive products to pay the settlement costs. This has the potential to victimize low-income smokers disproportionately, while allowing the investors in tobacco to realize enormous financial rewards by "immunizing" tobacco companies from many of the costs of further litigation. There must be a balance struck so that poor people and people of color, who are most likely to pay the higher costs of such a settlement through increased prices, also receive significant and measurable benefits from any agreement.
Given the enormous financial outlays that such a settlement would require from tobacco companies, it is inevitable that these costs would be passed along to consumers with substantial price increases in the cost of tobacco products. Since much of this increase would be paid by low-income individuals, who have the highest rates of tobacco use, it is critical that proportionate amounts of the funds that would be paid by the tobacco companies as a result of any Settlement Agreement go to fund programs that have poor people as their primary beneficiaries so that money is returned to the communities from which it has been taken. Clearly, any such allocation would benefit people of African descent in this country and other people of color. Use of funds raised by tobacco taxes and increases in tobacco costs that occur to pay for the settlement would offset much of the regressivity that is contained in any initiative that has its greatest negative financial impact on those least able to pay.
The Communities of Color statement also highlighted international issues of tobacco sales and marketing by companies based in the United States.
As people of color, we have links to our brothers and sisters worldwide. Some of our communities have large immigrant populations that are doubly impacted by the tobacco industryís targeted marketing practices here in the United States and in their home countries abroad. We do not view an increased international trafficking of tobacco addiction as a legitimate trade off in return for tougher sanctions on advertising and marketing to youth in the United States. All youth are important and all youth must be protected from tobacco marketing practices -- in the United States and throughout the world.
This issue is not addressed in the Settlement Agreement and that is a major oversight. It must be addressed thoughtfully in any discussion of the Settlement Agreement by the United States Congress. There are many ways that the United States can work with the World Health Organization and other groups in providing leadership in the reduction of the addictive use of tobacco products throughout the world. However, this should be done in concert with the governments of other nations since the United States and multi-national corporations should not dictate how independent nations handle their own issues relative to the manufacturing, marketing, and promotion of cigarettes and other tobacco products. The Settlement Agreement should not be used as a way of increasing marketing of tobacco products to other nations of the world.
Summary:
It is vital that African Americans and other persons in this country of African descent (including those from the islands of the Caribbean, from South and Central America, from Canada, from Europe and from Africa itself) review the Settlement Agreement from two perspectives: its impact on tobacco use in general and the specific impact that the various provisions of the Settlement Agreement will have on the Black community. This document is designed to provide the latter analysis and should be considered together with other reviews of the Settlement Agreement that address general market issues or relate to other racial or ethnic groups.
As one of the population groups that has been harmed the most by mortality and morbidity due to use of tobacco products, the concerns of Black people must be heard on this issue. We are pleased that Dr. Lonnie Bristow, an African American who served as Past President of the American Medical Association, joined the Settlement talks to bring a public health perspective. However, African Americans from all walks of life should become actively involved in discussions regarding the Settlement Agreement and the future of tobacco in this country. Only in this way can we be assured that future legislation and regulations on tobacco will provide increased benefits to our communities.
Here are items that are of specific concern to Black people in the United States. These items should be addressed in any legislative modifications by the Congress of the Settlement Agreement.
1. There should be specific language in any legislation passed by Congress indicating that diversity will be a major consideration in all aspects of tobacco prevention and control and mandating appropriate levels of representation from the communities of color, from women, and from other special populations will be mandated.
2. Money from the tobacco industry should be available to serve as replacement funding for cultural and educational programs and projects, to provide paid advertising in Black-owned and Black-oriented mass media, and to provide transition funds for African American farmers and African American workers in tobacco manufacturing companies and in other companies that will be seriously impacted by the changes in how tobacco companies conduct their affairs.
3. Cigars should be regulated in ways similar to cigarettes and smokeless tobacco.
4. Research should be conducted to understand the role of menthol in cigarettes (since that is the formulation of choice for most African American smokers), as well as on the best ways to provide cessation and prevention programs that are culturally appropriate to Black audiences of various ages: children, teenagers, adults, elders.
5.Funds should be set aside to provide health insurance for children, to educate parents to the dangers of secondhand smoke, and to provide appropriate medical treatment for children suffering from illnesses for which exposure to environmental tobacco smoke is an identified risk factor.
6. Any language relating to class action law suits should be written so that restrictions do not serve as precedent for areas that are unrelated to tobacco, given that class actions are used by many urban and rural poor communities to effectuate justice in areas of health, environmental justice and discrimination.
7.Because of the international scope of the tobacco companies, money should be allocated to fund tobacco prevention and control mass media campaigns in other countries, using information that has been gained in the United States to craft culturally appropriate messages for those populations.
8. The regressivity that will occur as a result of higher tobacco product prices resulting from industry payments and additional government taxation on tobacco products should be offset by earmarking funds raised due to the higher costs of cigarettes and other tobacco products in ways that allow people from poor communities and communities of color to receive proportionate benefits and services.
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