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Court Rulings Concern Tobacco Industry Critics

August 27, 1987

BOSTON (AP) _ Three recent court decisions protecting tobacco companies from certain types of lawsuits underscore the tradition of the tobacco industry as a sacred cow, anti-smokers claim.

Federal appeals decisions involving cases from Massachusetts, New Jersey and Florida held that warning labels on cigarette packs are enough to protect tobacco manufacturers from lawsuits that claim smoking caused illness or death.

Anti-smoking groups say the decisions provide more evidence that the tobacco industry, a $33 billion-a-year business, is unduly allowed to flourish whereas other dangerous products are removed from the market.

″They have some type of incredible immunity that nobody can really explain,″ said Alan Blum, an assistant professor of family medicine at the Baylor College of Medicine in Houston and founder of Doctors Ought to Care, an anti-smoking group comprised of doctors and other health professionals.

″We’re talking about a product that kills. It’s pure and unadulterated money and power. It’s too big to buck.″

Richard Daynard, Northeastern University professor and founder of the Tobacco Products Liability Project, a group of health professionals and lawyers that backs action against tobacco companies, said the rulings called to mind an anti-smoking saying.

″If mosquitoes had the same lobby tobacco had, we’d all have malaria,″ he said.

Tobacco companies respond to attacks on their industry with equanimity. Despite the 1965 Congressional act mandating health warning labels on cigarette packs, they maintain that there is no proof that smoking causes illness or death. They also say there is no practical method of removing cigarettes from the market when 50 million Americans are hooked on them.

″I don’t know of any serious suggestion by anybody that we need another Prohibition - this time for cigarettes,″ said Walker Merryman, spokesman for the Tobacco Institute in Washington, D.C. ″Most everyone realizes that noble experiment failed. Congress has already given people the information to allow them to make their own judgments.″

A Tuesday decision in the First Circuit Court of Appeals in Boston was the latest to back the tobacco industry. It stemmed from a suit filed by the heirs of a Newton man who died from lung cancer in 1980 after smoking up to four packs of cigarettes a day for 23 years. The Florida ruling came last week and the New Jersey ruling was issued in April 1986.

At the heart of the controversy is public health vs. commercial enterprise and whether smoking is an individual right.

U.S Circuit Court Judge John R. Brown, who wrote Tuesday’s court decision, stressed the delicate balance struck by Congress when members created the legislation for warning labels in 1965.

″In drafting the Act, Congress had two policies - health protection (through education) and trade protection - to implement, but only one purpose: to strike a fair, effective balance between these two competing interests,″ Brown wrote.

But anti-smoking groups say there is nothing fair about smoking and what they see as the continual protection given tobacco companies in American society. Most unfair, they say, are statistics showing that the average American starts smoking at age 14 and that youth is more vulnerable to the $3 billion spent annually in cigarette advertising and promotion.

″No one has any authority over them, no one knows what pesticides are used on tobacco leaves, no one knows what additives are put in,″ said Pat Kates, spokeswoman for the Boston-based Group Against Smoking Pollution, or GASP.

″The fact that cigarettes are a legal product is an accident of history. People got hooked and they became a part of our society before we understood the health hazards. Certainly, no one would permit such a product to go on the market today.″

Tobacco company spokesmen remain calm in response to even the most fervid claims of anti-smokers. Most, such as David Fishel of the Winston-Salem, N.C.-based R.J. Reynolds Tobacco Co., maintain that ″scientists don’t know what causes the diseases that are alleged to be caused by smoking.″

They point to the New York-based Council for Tobacco Research, founded by tobacco companies in 1954 to fund research by independent scientists into smoking and health, as evidence of their concern about the issue.

The council said it has spent $120 million on research and published more than 3,000 papers on the topic of smoking and health, but a final determination that smoking is dangerous to health has not been established.

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