Race, Health Care and the Law 
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Proposed National Settlement

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Vernellia R. Randall
Professor of Law and
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I. The Proposed National Tobacco Settlement

On June 20, 1997, a group of State Attorney Generals, plaintiffs' attorneys, public health advocates, and representatives of major tobacco companies announced an historic national tobacco industry settlement.(5) This proposed settlement was designed to restructure the tobacco industry and to reimburse participating states for their expenditures on smoking-related illnesses.(6) Several bills were introduced into Congress to convert the proposed settlement into law.(7) Special legal protection for the tobacco industry is the linchpin of the proposed settlement and the bills. In the proposed legislation, typically, the tobacco industry agrees to (1) drastically limit marketing and advertising;(8) (2) accept regulation by the Food and Drug Administration;(9) (3) finance programs aimed at deterring young people from smoking;(10) (4) finance smoking cessations programs;(11) and (5) partially reimburse the states for their tobacco-related health costs.(12)

The quid pro quo for the magnanimous concession on the part of the tobacco industry include (1) terminating existing class actions and barring future class actions or multi-case lawsuits against the companies;(13) (2) terminating existing civil action claims and barring future civil action claims based on addiction or dependency;(14) (3) capping the annual payments by the industry in judgments and settlements of lawsuits brought by individuals starting at $2 billion and rising to $5 billion;(15) (4) prohibiting future lawsuits by states against the companies; and (5) eliminating punitive damage awards against the companies for past conduct.(16)

Clearly, the most significant benefit in the bill to the African-American community bill is the limitation of advertising.(17) The number one advertised product in African-American communities is cigarettes.(18) Any ban on outdoor advertising will have a profound, positive effect on the African-American community. However, given the difficulty that black smokers have in quitting, and the substantial brand loyalty among smokers, such a ban really addresses new smokers and does little to help chronic smokers.(19) While the proposed authorizing legislation requires the funding of biomedical research, it does not specifically require that biomedical research be conducted to address why African-Americans smoke less and have greater dependence.(20) Similarly, while the proposed authorizing legislation requires the development of smoking cessation programs, it does not require the development of culturally specific smoking cessation programs.(21) Furthermore, by banning class action suits, the proposed authorizing legislation effectively limits the ability of poor and middle class individuals to bring suits against richer tobacco companies and win. Finally, given the effect of mentholated cigarettes and the targeting of the African-American community, the banning of dependence and addiction suits bars a primary claim of African-Americans without providing any substantial relief for those individuals who are already addicted and who are unable to "kick" the habit. The tobacco company should not be able to walk away from the billions of dollars of harm that they have caused and will cause by selling a deadly, addictive product.

The fact that the authorizing legislation does not directly address the needs of African-Americans is not surprising since it merely reflects the proposed settlement. It would be surprising indeed if the settlement adequately represented the interest of African-American communities since the negotiation table did not include any health representatives of the African-American community.(22) "It was pretty much a white male group that put the settlement together, and the document reflects that."(23)The obvious retort is why should any tobacco settlement specifically address the needs of African- Americans? The simple reason is that tobacco companies have for years specifically targeted the community as much as they targeted underage smokers. As a result of "pushing mentholated nicotine on the community," African- Americans are more addicted and have poorer health status than European- Americans. The quid pro quo for African-Americans needs to be very specific.(24) The current proposals are insufficient.

 

Introduction
Proposed National Settlement
Targetting of African Americans
Being a Black Smoker
Restructuring theTobacco Settlement

 

5. FN4. Mealey's Litig. Rep.: Tobacco, Attorneys General, Tobacco Companies Enter into Historic $368.5 Billion Pact, July 3, 1997, at 3.

6. FN5. Id.

7. FN6. See generally S. 1648, 105th Cong. (1998); S. 1530, 105th Cong. (1997); H.R. 3028, 105th Cong. (1997); S. 1414, 105th Cong. (1997); S. 1415, 105th Cong. (1997).

8. FN7. Typically, the legislation prohibits any form of outdoor tobacco product advertising, including billboards, posters, or placards; prohibits the advertising of tobacco products in any arena or stadium where athletic, musical, artistic or other social or cultural events or activities take place; prohibits the use of ahuman image, a cartoon character or cartoon-type character in its advertising, labeling or promotional material; prohibits using the Internet to advertise tobacco products unless such an advertisement is inaccessible; and limits the use of point of sale advertising of tobacco products. See S. 1530, 105th Cong. §212 (1997).

9. FN8. Proposed legislation typically amends the Federal Food, Drug, and Cosmetic Act to include regulation of nicotine containing tobacco products under the auspice of the FDA. See S.1530, 105th Cong. §401 (1997).

10. FN9. Typically, legislation was designed to establish and implement a national anti-tobacco product consumption and a tobacco product cessation program to discourage individuals from beginning to use tobacco products and other substances of abuse and to assist individuals who consume such products to discontinue such use. This legislation often placed special emphasis on health promotion and disease prevention activities that discouraged children under the age of 18 from initiating or continuing use of such products. S. 1530, 105th Cong. §521-22 (1997).

11. FN10. Id.

12. FN11. Generally, the proposed authorizing legislation provides a schedule of payments for the reimbursement of each state for amounts expended by the state for the treatment of individuals with tobacco-related illnesses or conditions. See S. 1530, 105th Cong. §501 (1997).

13. FN12. Authorizing legislation typically provides for banning class action suits, joinder of parties, aggregation of claims, consolidation of actions, extrapolations, or other devices to resolve cases other than on the basis of individual actions. See S. 1530, 105th Cong. §§256-57 (1997).

14. FN13. Typically, authorizing legislation terminates any civil action for claims based on addiction to or dependence on tobacco products that are pending against a manufacturer. Some legislation proposes providing immunity from any civil action for all claims based on addiction to or dependence on a tobacco product. S. 1530, 105th Cong. §256 (1997).

15. FN14. S. 1530, 105th Cong. §257(j)(1), (5) (1997).

16. FN15. Id. at §257(b).

17. FN16. S. 1530, 105th Cong. §212(a)-(b) (1997) (banning the use of any form of outdoor tobacco product advertising including billboards, posters, or placards; banning the advertisement of tobacco products in any arena or stadium where athletic, musical, artistic or other social or cultural events or activities occur; banning the use of human image or a cartoon character or cartoon-type character in its advertising, labeling, or promotional material with respect to a tobacco product; banning the use of the Internet to advertise tobacco products; and generally, prohibiting the use of point of sale advertising of tobacco products).

18. FN17. Harry Goldstein, Billboard Liberation, 48 Utne Reader, Nov. 1991, at 46, 46.

19. FN18. See generally A. Anderson, Cigarette Brand Use Among Adult Smokers-- United States, 1986, 39 Morbidity & Mortality Wkly. Rep. 665, 673 (1990).

20. FN19. S. 1530, 105th Cong. §522 (1997).

21. FN20. Id.

22. FN21. See generally Deborah Kelly, Tobacco Settlement Attacked Again, Black Physicians' Group Believes Proposal Is Weak, Richmond Times-Dispatch, Aug. 6, 1997, at A10, available in 1997 WL 7625753.

23. FN22. See Tobacco Industry's Ad Assault on Blacks Is Detailed in Records: Newly Released Documents Disclose Broad Scope of Marketing Campaigns, St. Louis Post-Dispatch, Feb. 8, 1998, at A14, available in 1998 WL 3318686 (quoting Rep. Beenie Thompson, Congressional Black Caucus). See also Black Smokers Object to Tobacco Settlement, Baton Rouge Advoc., June 6, 1997, at 5A, available in 1997 WL 7250054 (detailing the sentiment of the United Black Smokers of America that African-Americans should have been at the negotiation table).

24. FN23. Targeting involves disproportionately promoting dangerous or harmful products to one segment of the population.

 

 
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Professor Vernellia R. Randall
Institute on Race, Health Care and the Law
The University of Dayton School of Law
300 College Park 
Dayton, OH 45469-2772
Email: randall@udayton.edu

 

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 03/10/2010

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