Tobacco.org

All these factors suggest that we are heading for a trap.

The primary forces pushing this settlement (in addition to the tobacco companies) are some of the attorneys general, led by Mike Moore, and some of the private lawyers, led by Dick Scruggs.

Moore and Scruggs deserve a lot of credit for helping to get the current wave of litigation going and deserve our gratitude. In particular, Mike Moore took considerable political risks when he brought this case. Nevertheless, it is important to recognize that Moore's interests are different from those of public health advocates.

From a public health perspective, it is not important that we win every one of the cases against the tobacco industry. Most observers believe that winning 10-20% of the cases would be enough to force fundamental change in the tobacco industry and perhaps even eliminate it in its current form. Viewed from this perspective, it is not all that important whether or not Moore wins his case. If he wins, it will be great. If he loses, he still will have started a process that will probably lead to the end of the tobacco industry as we know it.

From the perspective of an ambitious politician, things look quite different. If Moore wins his case, he will be a huge hero. If, however, he loses, he will take a huge political hit that could seriously compromise his career. Viewed from this vantage point, settlement is a very attractive option. If he can settle these cases with the blessing of the health groups, he will probably get virtually the same political benefits as he would if he won. Indeed, one could argue that by emerging as the leader in a national settlement, he could even emerge with greater stature than if he won his case.

In making these points, I do not mean to criticize Mike. Indeed, one of the benefits of our political system is to reward politicians who show leadership. Even so, this does not mean that Mike's political interests are identical to those of the public health community. For him to succeed, however, he has to be able to claim that the public health groups support him.

Likewise, Dick Scruggs has contributed in a major way to this process. The fact remains, however, that if the litigation continues it costs him money and if it ends he stands to make a substantial amount on his investment. Like Moore, I do not begrudge Scruggs his reward for the good work he has done. It is important to recognize, however, that getting Scruggs his rewards sooner rather than later may not be in the interest of the public health.

Similar comments apply to most, of not all, the attorneys general and private lawyers who are involved in the litigation. (Allen Morrison made this point at the meeting in Chicago.) There is nothing wrong with these facts, but it is important that we are appropriately skeptical.

It is therefore, crucial to Moore and his allies to be able to claim the support of the health groups. This fact particularly troubled me when I looked at the "experts" at the meeting in Chicago. Except for John Slade (who has not expressed an opinion to my knowledge), all the other people there had expressed the view that a deal with the tobacco industry that did not bankrupt or otherwise force fundamental change was a reasonable idea. People known to be skeptical -- like Henry Waxman and me -- were excluded. It looked to me like a setup designed to certify the very controversial positions that the National Center has taken on this issue.

Given my view that the process was designed to come up with a predetermined outcome, I was pretty depressed. Indeed, when Julia Carol and a couple of other people told me I had to go to the meeting uninvited, I refused. I have never "crashed" a meeting and felt that going was a waste of time since no one would be listening anyway. Julia and other argued that for these very reasons, I had to attend, if for no other reason than to watch things go down the tube.

In any event, the meeting -- at least the one I attended -- did not provide Moore the desired ringing endorsement. It seemed that the consensus was to allow people to join the negotiations as individuals, but not as institutional representatives.

Given this understanding, I was surprised when I started getting calls from reporters on Saturday asking me to react to Moore's statements to the press saying that all the health groups were "on board" and joining the negotiations. My reaction was that that was not the consensus at the meeting I attended.

Why would Moore and the other pro-settlement AG's make such a statement? Because we are in a political process and "momentum" is important. If Moore can give the impression that "everyone else" is on board, the remaining skeptics may come around.

The confusion continued with several reporters who called me on Sunday. I continued to say that it was my impression that the health groups were continuing to watch the negotiations with interest (which was more active than I wanted), but that they were not joining as active participants.

I was, therefore, surprised to see the statement that the Center released on May 7. It said, in part

Statement from American Academy of Family Physicians, American Cancer Society, American Heart Association, American Medical Association, and the Campaign for Tobacco-Free Kids

May 7, 1997 - Individuals involved in public health and tobacco control have raised thoughtful concerns about the ongoing discussions with the tobacco industry and our involvement in them. We share these concerns. We have weighed them carefully, consulted within the tobacco control community, and have decided to continue with the discussions. Our goal is not an agreement at any cost, but rather to seek the best possible outcome, from a public health perspective, if any agreement is ever reached.

We have made it clear that our participation in these discussions does not obligate any of our organizations to accept an agreement that may emerge from the talks.

These statements seem to clearly imply institutional participation in the process, as it is being represented to the media by pro-settlement forces. It is my view that the Center has been quite consistent in representing itself as speaking "for" the health groups more literally than the facts justify. In each instance, when challenged, they have equivocated or backed down.

What is the truth?

I am concerned that ambiguous or nuanced positions that some health groups are taking are being misrepresented to create momentum for a global settlement and that, when the dust settles and we figure out that it was not such a good deal after all (as in every case in the past in which Congress intervened to "solve" a tobacco problem), it will be too late. The health groups will be held responsible.

This is particularly the case given the fact that there is widespread opposition to a "global settlement" in the tobacco control community and general public at large. I am particularly puzzled by the fact that ACS and AHA (but not ALA) are willing to consider more accommodating positions to the tobacco industry than most of the media. I think it is almost surrealistic that Business Week has taken a position opposed to the current settlement when key health groups have not.

It is important to emphasize that I am not opposed to settlement discussions. In fact, settlement discussions are a normal part of any litigation process and the attorneys general must engage in such discussions before they go to trial. Moreover, it is reasonable for there to be some public health presence in the discussions. The question is not whether there should be discussions, but rather what the scope of the discussions should be.

It would be reasonable for these discussions to concern the cases at hand. If the discussions were limited to the cases at hand (as opposed to writing a piece of legislation), the stakes would be much lower and issues such as immunity would be much simpler. It would also avoid going to Congress, which is where the industry is strongest.

I am also concerned about the role of the AMA. The AMA is first and foremost a trade association designed to protect doctors' interests. The AMA will work on the public health, but when public health goals conflict with the AMA's economic goals, the public health almost always loses. As with the divergent interests of the attorneys general and private bar, there is nothing wrong with the AMA representing doctors' interests so long as everyone keeps the realities of those interests in mind. This fact raises the likelihood that some economic trade off will be offered by Clinton or Congress to get the AMA to support compromises with the tobacco industry that might not be acceptable to the public health community.

Let me give you an example. Two years ago many public health leaders, including John Seffrin and the officers of the ACS signed an opinion advertisement in the New York Times protesting Congress' attack on my NCI grant. At the time, Tom Houston of AMA indicated that Lonnie Bristow would also be signing the ad. At the last minute, Tom called and said that the AMA had decided that Lonnie should not sign the ad because it might anger Newt Gingrich and other Republicans who were then considering legislation of direct economic interest to doctors.

While I was disappointed with Bristow's decision, I did not make an issue of it because AMA was acting in accordance with its priorities and interests and because we already had more than enough people signing the ad. (AMA later gave Congressman Porter, the congressman attacking my work, an award.) The point is that you cannot depend on the AMA in a pinch on the tobacco issue. It is just too vulnerable to pressure on other political issues.

As things unfold, I fear a scenario in which there is a deal struck and Clinton holds a Rose Garden ceremony to announce the deal with Lonnie at his side. Such a scenario will the other public health groups that normally try to work with the AMA in a very difficult position if they are not totally satisfied with the bill. I wonder how they will handle being the position of openly opposing the AMA?

The settlement negotiations are predicated on allowing the industry to continue to exist in its current form. Is this what the public and public health community wants? I do not understand how any public health organization can endorse a process that will ensure a stable legal environment for the tobacco industry.

I recognize that I am an optimist, but I believe that with patience, enough of the law suits facing the industry will succeed to create a situation in which Wall Street will start to pressure Philip Morris, Reynolds and the others to get out of the tobacco business because the liability associated with selling tobacco will jeopardize their non-tobacco assets. At that time, we will be in a position to make real change in the structure of the industry not only at home but overseas.

While I do not believe that any public health group could control Congress, I do believe that the voluntary health agencies can control the terms and venue of the debate and force the attorneys general and other lawyers to keep the litigation going long enough to have enough victories to force this fundamental change.

These are the reasons that I have been urging a foursquare position that Congress (and the President) should not get involved in this litigation and that you will not support any negotiations that lead to Congress. Doing so would eliminate many of the problems that I am discussing and greatly reduce the risks to public health. The ad you ran stating that "Congress should not get involved" and was noted by the press and the public. No immunity, particularly no criminal immunity. That should be the message that can rally the public and keep the litigation process on track.