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