Criminalizing Big Tobacco: Legal Mobilization and the Politics of Responsibility for Health Risks in the United States

Michael McCann, William Haltom, and Shauna Fisher[1]

“I’m convinced the tobacco companies lie and cheat and cover up, and do everything in their power to get kids to smoke…The verdict…has to be huge…to punish the tobacco industry for its corporate sins…..”

“What will happen to the tobacco industry if we bring back a big verdict…?”

“Legally, economically, or politically?”

“All.”

“…..(T)he industry will never be the same if we do what we should do.”

Dialogue from John Grisham’s The Runaway Jury, 1996, p. 524, 531

“Cigarette Makers Get Away with Murder.”

Elizabeth M. Whelan in The Detroit News, 2003.[2]

“(The tobacco) industry’s deceit was the crime of the (last) century.”

Allan Brandt, Harvard health historian

1. Introduction

Legal activists and tactics have played prominent roles in the campaign to challenge, regulate, curtail, and render accountable the U.S. tobacco industry over the last forty years. Many insiders have trumpeted the view that litigation has been a transformative resource and site in this struggle with Big Tobacco (Gostin 2002). “Law…provides a tool for dramatically changing the course of public health…Indeed, the tobacco litigation suggests how lawyers may move an issue dramatically, “ wrote one observer in a high profile public health conference (Parmet: 2002: 202). Former FTC chairman and noted consumer advocate Michael Pertschuk specifically celebrated the litigation strategy of leading lawyers: “Dick Daynard’s…greatest contribution to public health came from the strategic application of the lawyerly tool of litigation to the achievement of public health goals – a tool that evolved from an “all thumbs, no fingers” hammer to a calibrated instrument of public policy” (2002). Lawyers who led the challenge against tobacco have made similar claims, echoing the type of dramatic rhetoric cited in the epigraph above from Grisham’s legal fiction. “The most important public health litigation ever in history,” is how Mississippi Attorney General Michael C. Moore described the lawsuit he had filed on behalf of his state against the tobacco industry in 1994. He boasted to a New York Times reporter, “It has the potential to save more lives than anything that’s ever been done.”(Sack 1997).

Social scientists have varied widely in their assessment of this legacy, however. Some scholars view anti-tobacco litigation as both consequential and transformative or effective (Mather 1998). Others, following Gerald Rosenberg’s familiar argument, view the litigation as a “hollow hope,” as relatively inconsequential and hence either irrelevant, diversionary, or largely triumphant for industry (Godshall 1999; Kluger 1996). Yet others view the litigation legacy as highly consequential but a fundamentally misguided and suboptimal as a policy mechanism for regulating tobacco (Derthick 2002; Kagan and Nelson 2001; Melnick 1999).

Our study differs from most of these previous analyses in at least three key ways. First, we demonstrate that reinterpreting how the specific forms, agents, and venues of legal action proliferated and changed over time as a dynamic, complex process of struggle is critical to assessing how much and why they mattered for the tobacco wars. Specifically, we call attention to the fundamental, if gradual and subtle, transformation in the core legal strategy from a standard civil tort model of product liability to a white collar criminal, or “crimtort,” model that redefined the larger political dynamics and policy agenda.

Second, we examine the ways in which this profound transformation in the legal campaign resonated within and throughout the broader political culture. In short, the criminalization of the tobacco industry developed momentum in the courts of mass media and public policy discourse even more than in official courts of law, although this cultural transformation was thoroughly constituted by shared conventions of legal knowledge. This argument builds on and confirms the insights of many scholars who underline the power of legal norms and knowledge as a constitutive force in social and political interaction (McCann 1994; Haltom and McCann 2004; Ewick and Silbey 1998).

Third, our analysis in turn focuses attention on the broader socio-legal context of the struggle. One especially important contextual factor that we identify has been the enduring allegiance of Americans to the moral ethos of individual responsibility. This deep ideological commitment has not only directly frustrated legal challenges on behalf of consumers against Big Tobacco, but it also has been at the heart of the two important political movements that dominated the backdrop of the tobacco wars: the backlash against private tort litigation and lawyers that developed in the 1970s (Haltom and McCann 2004), and a parallel cultural celebration of public prosecutorial action against alleged criminal behavior that preoccupied American society over the same time period (Scheingold 1984; Beckett 1997; Simon 2008). To a large extent, our primary theme is that legal activists challenging the tobacco industry advanced their cause by distancing themselves from the first trend and, in a creative counter-hegemonic strategy, identifying with the symbolic politics of the second, otherwise conservative, hierarchy-supporting current.

One general implication of our approach is to suggest that scholarly assessments seeking to isolate “litigation,” “adversarial legalism,” and the like as discrete, independent causal forces fail to account for the complexity and variability of law’s manifestations in the tobacco wars.[3] We instead ground our analysis in a multi-dimensional, context-contingent, process-oriented “legal mobilization” framework for understanding the politics of rights in action. Building on this approach, we continue our past efforts to transcend simplistic judgments about episodes of litigation as either transformative and consequential or inconsequential and cooptive; the legal campaign against Big Tobacco is best understood as exemplifying all these features and more. Our account builds on previous work in this tradition by us[4] and others, especially Professor Lynn Mather’s terrific studies, but it develops earlier interpretations of the tobacco wars in significant new ways, extends the temporal frame by nearly a decade, and adds abundant new data to assessment of the legacy.

II. Tobacco Policy and Politics in the U.S.: An Interpretive Overview

The general historical outlines of tobacco politics after WWII in the U.S. are well known among socio-legal scholars (Kagan and Nelson 2001; Mather 1998). We build on earlier analyses by constructing that history in terms of distinct periods or “waves” of political and legal mobilization challenging the tobacco industry (Mather 1998; Rabin, 2001; Haltom and McCann 2004). Our account here goes rather further, however, both in documenting the most recent period and in analyzing the very different forms, venues, actors, and claims that marked legal mobilization during each period. The overall trend, we suggest, has been less replacement of one form of litigation by another in each successive period than a steady accumulation of different modes of legal action into an increasingly complex, interactive, and tangled web of multi-dimensional legal contestation. We will in subsequent pages identify important markers of changing policy substance and relative group power during this process, but our aim is to offer a complex analytic narrative rather than isolate specific causal variable variables for measurement.

Four Waves of Challenge. As Baumgartner and Jones (1993) document, Big Tobacco, which had established close financial and political connections to state and national government since our nation’s founding, was challenged little prior to the 1950s; the industry monopolized the policy subsystem. Most media attention and congressional action was dominated by questions regarding governmental subsidies to tobacco growers and similar concerns about the economics of the industry. The first wave of political challenge to Big Tobacco began in the 1950s, peaked in the mid-1960s, and continued into the early 1980s. The challenges were waged primarily by coalitions of health experts and scientists outside and inside of government. The key disputes in this period focused on the certainty of scientific evidence about the health hazards of tobacco as well as about corporate liability for consumer choices, which was largely muted by broad social consensus on consumer responsibility for risks inherent in smoking.

By far the most significant event was The Surgeon General’s report in January 1964 indicating scientific evidence that consumption of tobacco was related to various diseases, followed in the next year by congressional legislation requiring warnings on cigarette packs. This development generated a somewhat contradictory strategic position by the industry. On the one hand, Big Tobacco defended itself by contesting the reliability and conclusions from disparate scientific studies, aided by, as we now know, the skewed studies that the industry sponsored, misreported, and then shielded as “attorney work product” (Mather 1998; Glantz et al 1996; Kluger 1997). On the other hand, the industry welcomed the mandate of package labeling as further justification for pinning the blame for injury on those individuals who chose to consume tobacco products despite clearly marked warnings. The industry tolerated substantial excise taxes by state and national authorities as a necessary concession to ward off further regulation.

Hundreds – over 300 between 1954 and 1992 -- of individual civil lawsuits also were initiated by private plaintiffs’ attorneys on behalf of those aggrieved by smokers’ deaths, but all failed due to successful corporate defense strategies disputing scientific evidence and trumpeting individual responsibility for assumed risk (Rabin 1993; Kagan 1993, 2001). These suits did, however, force the industry, and its collective lobbying organ, The Tobacco Institute, to make lawyers along with public relations specialists leaders of the larger political defense strategy. State policies varied widely in specifics, but they included the initial restrictions on smoking in various indoor venues during the latter part of this period. Generally, media reporting and congressional hearings reflected increased challenges to Big Tobacco in national politics, although most observers agree that the industry preserved its relative monopoly status (Baumgartner and Jones 1993).

Our primary interest in this paper begins with the second wave of political contestation, which is usually demarcated as between 1983 to 1992. Three important developments in this period deserve mention. First was the formation of the Tobacco Products Liability Project, led by Professor Richard Daynard at Northeastern University. A growing group of legal activists developed a classic legal mobilization strategy aiming to deploy litigation to force tobacco producers to release likely incriminating information through discovery, to take advantage of media attention around lawsuits to dramatize the harms knowingly imposed by the industry, and thus to bolster both the salience and substance of the public policy agenda around tobacco. As Mather notes, what is significant is that “litigation was thus the centerpiece of an overall political strategy, one that would require media coverage and public engagement to counter the tobacco industry’s strong influence over Congress and state legislatures” (1998:908).

This new offensive by sophisticated challengers and growing scientific evidence of the harmful effects “caused” by smoking put the tobacco industry on the defensive, leading to what often has been labeled a “Scorched Earth, Wall of Flesh” strategy of well-funded attrition against increasing numbers of privately-initiated civil lawsuits (Zegart 2000; Kluger 1996). Big Tobacco expended enormous resources to fund an aggressive, sustained, and well-coordinated campaign against every legal challenge. This proved successful until Mark Edell, a veteran of litigation against asbestos companies, managed in Cipollone v. Liggett to generate serious discovery revealing gross duplicity and knowing manipulation of scientific data by tobacco companies, leading to a verdict and damages for the plaintiff from a jury, despite the more than $50 (some estimate $75) million expended by the tobacco industry for its legal defense (Kluger 1996: 663-677). The1988 jury award was eventually reversed on appeal by the Third Circuit Court of Appeals, largely because the 1966 federal statutory requirement of warning labels preempted legal challenges for industry liability. The U.S. Supreme Court subsequently reversed that decision and remanded the case for rehearing. However, Big Tobacco, a classic repeat player, triumphed through their standard strategy of outspending and outlasting financially and emotionally depleted opponents, who gave up the battle. “Stung, perhaps, but not shaken, the cigarette makers claimed once again what they have all along: the industry has never paid and never settled, and people who smoke must take responsibility for their own actions,” reported The New York Times (Crum 1992).[5]

Nevertheless, the Cipollone case marked the beginning of a transformation in the struggle over tobacco. Most important, the Supreme Court ruled that the earlier legislated requirement of warning labels did not preempt individual claims of harm except in limited ways, nor, more important, did it preclude claims about industry conspiracy to defraud the public through false claims or advertising. The initial trial itself drew little media attention, but the ruling the Supreme Court was widely reported as a breakthrough. The deceased smoker, Rose Cipollone, her family, and the lawyer Mark Edell, were covered extensively and sympathetically as the Court considered the case; the New York Times announced after the ruling that “the Supreme Court today opened the door wide to damage suits by smokers against the cigarette industry in a surprisingly broad decision rejecting many of the industry's arguments that such lawsuits were barred by Federal law” (Greenhouse 1992). The Cipollone litigation proved to be path breaking both in exposing evidence that tobacco companies had conspired to deceive the public in a variety of regards and symbolically in sparking hope that jury victories were possible.

Finally, attention and action regarding “second hand smoke” accelerated in this period. Surgeon General C. Everett Koop used his authority to lead a campaign to reduce environmental tobacco smoke during the 1980s. Media coverage of the topic increased, litigation commenced challenging tobacco as an indoor environmental hazard, and smoking was banned on airlines and selectively in restaurants and public spaces in a few states. Perhaps the most significant development at stake was the increasing shift from viewing tobacco primarily as a risk voluntarily assumed by consuming individuals to a costly health hazard involuntarily imposed on non-smoking citizens in the general public. At the same time, smoking rates in the U.S. continued the long term decline in the 1980s, dropping to almost half of the 1964 level by 1989 (CDC).

The most numerous, diverse, and dramatic events unfolded during the third wave, 1992-1999. Much of the activity did not directly involve litigation, although it clearly was related, especially to Cipollone: 1) news media reported increasing revelations from whistleblowers and investigators that the tobacco industry willfully misled the public about scientific research and their spiking of tobacco with addictive nicotine; 2) at the very same time in 1994, congressional hearings featured representatives of seven tobacco corporations who continued to deny knowledge or complicity in these matters; and 3) Clinton administration FDA chief David Kessler set about gathering evidence to support expansion of his agency’s regulatory authority over tobacco (Kessler 2001). Amidst these developments the litigation efforts multiplied greatly in number, changed dramatically in form, and expanded substantive claims about industry wrongs.