| IV. Restructuring the Tobacco Settlement
The primary focus of the settlement and the resulting legislation is
to decrease youth smoking.(124) Certainly,
decreasing underage smoking is a commendable goal, but it remains insufficient
for the African-American community. Underage smoking has been on the decline
in African-American communities for many years. Only 1% of African-American
girls are frequent smokers compared to 20% of white girls.(125)
African-American boys also smoke at lower rates than whites, 9% compared
to 18%.(126) This racial gap in smoking
remains consistent across education and economic lines.(127)
Thus, an agreement which focuses primarily on underage smoking and advertising
fails to focus on the most significant problem for African-Americans--adult
smoking caused by the targeting of the African-American community.(128)The
settlement and the resulting legislation fails to mention African-Americans
and their "special" relationship with the tobacco industry. The goal of
"decreas [ing] tobacco use by all Americans by encouraging public education
and smoking cessation programs and to decrease the exposure of individuals
to environmental (second-hand) smoke" is worthwhile. However, just as the
industry targeted the African-American community for the sale of its product,
the remedies should also be targeted. The restructuring of the tobacco
settlement must include (1) the funding of culturally-specific cessation
programs targeted toward African-Americans; (2) the funding of biomedical
research specifically addressing the issues of African-Americans' addiction
and dependence; (3) the funding of African-American events historically
supported by tobacco industries; (4) the limiting of immunity to information
disclosed prior to the enactment of any legislation; and most importantly,
(5) the establishment of a Tobacco Injury Compensation Fund for addicted
smokers.
A. Funding Cessation Programs and Biomedical Research Targeted Toward
African- Americans
The authorizing legislation should specifically set a certain percentage
of the tobacco settlement fund for the development of cessation programs
that are specifically designed for African-Americans.(129)
Similarly, it should also include funding biomedical research into
the difference between African-American and white smokers,(130)
especially the health effects of mentholated and high tar cigarettes. Previous
research indicated a marked difference in biochemical levels between African-American
smokers and white smokers.(131) Without
a specific study into the difference, effective cessation programs for
African-Americans cannot be developed.
B. Funding of African-American Events and Organizations
The authorizing legislation should establish a fund that would disburse
grants to African-American groups that relied on tobacco company sponsorship
and are no longer able to do so because of the ban on advertising contemplated
in the settlement. Such groups would include organizations such as newspaper
owners, farmers(132) and other business
owners, as well as public service organizations which have traditionally
sponsored events which will be affected by the tobacco legislation. Several
bills already introduced have sections which provide for the sponsorship
of such events; however, they do not specifically address the unique issues
of the African-American community.(133)
C. Limiting Immunity
Any grant of immunity should be limited, especially as to the issue
of addiction and dependence. The tobacco industry should be required to
disclose all relevant documents. Furthermore, punitive damages should be
retained "with respect to claims based on facts not disclosed by the tobacco
manufacturers to Congress and the public."(134)
D. Establishing a Tobacco Injury Compensation Fund
While cessation programs are important, especially programs geared toward
the needs of African-Americans, the reality is that African-Americans have
more difficulty quitting smoking than do European-Americans. This
increased difficulty may be related to their preference for mentholated
cigarettes which were specifically marketed toward African-Americans. This
increased difficulty in quitting means that a significant number of current
adult African-American smokers will continue to be disproportionately affected
by the health risk associated with smoking. However, without class action
suits, poor and middle class African-Americans will have a difficult, if
not impossible, time sustaining lawsuits to recover their damages. Given
the addictive nature of nicotine and the specific targeting of African-Americans,
individuals ought to be able to recover their medical and economic expenses
from the tobacco companies without having to sue.The tobacco settlement
proposal limits the ability of individuals to sue under class actions and
limits recovery for individuals in the tort system. However, the tort system
results in a significant degree of chance, heavy transactional costs, inadequate
compensation recovery, and ineffectual deterrents. Probably of greatest
importance is the significant element of chance which exists under the
tort system. Recovery is speculative and has been equated to a lottery.(135)
For instance, even though 17% of adverse outcomes in medical patients are
traceable to negligence,(136) under the
current tort recovery system only 10% of injured patients eventually file
a claim, and only 4% actually receive compensation.(137)
The persons least likely to receive compensation are likely to be those
least able to afford the injuries: the poor, women, and minorities. These
groups have historically had inadequate access to the legal system, which
clearly affects their ability to recover for tobacco injuries.Additionally,
the tort system bears heavy transactional costs. Even for those who actually
receive compensation, the transactional costs created by the process are
immense. Plaintiffs incur significant costs in time, money, and stress.(138)
For instance, the average medical malpractice claim takes over eighteen
months to settle or adjudicate.(139) Much
of this time is attributable to delay as a defense maneuver.(140)
The cost of an individual litigating tobacco claims will be significant,(141)
and the psychological stress will be substantial and real.(142)
Furthermore, the current tort system provides inadequate recovery. Even
after investing time, money, and stress, the plaintiff's recovery is still
likely to be inadequate to compensate her economic losses. In fact, up
to 40% of any award isdistributed as attorney fees.(143)
Thus, even if an individual overcomes the difficulty of recovering under
the tort system, compensation is likely to be inadequate.
Finally, the current tort system provides ineffectual deterrents. Whether
the tort system deters substandard behavior is, at best, speculative.(144)
The question is whether the tobacco industry will alter their behavior
to conform to the legal standard. After all, only theoretical possibilities
have been articulated, and no real and substantial deterrent effect has
been proven.(145)
The present system is inadequate to handle the task of fairly distributing
the cost of injuries. In addition to fairness problems, the present system
exacerbates the cost of tobacco-related injuries through transactional
costs, social costs of delay and disability, and individual costs.
Because tobacco related injuries have such difficult problems of proof
and are so indirect in causation, it widens the gap between injury and
compensation. For these reasons, it would be wise to consider some alternative
to the present tort system to allocate the burden for injuries that are
caused to individuals. That alternative would be a fully funded Tobacco
Injury Compensation Fund.(146) There will
likely be a reluctance to expend limited resources on those who knowingly
encounter a risk for no good reason. However, for current smoking adults
the risk of becoming dependent or addicted was not one they knowingly encountered.
Furthermore, until the true addictive nature of mentholated nicotine is
made known, the tobacco company should be held responsible. Finally, the
tobacco industry has a long history of fighting individual tort litigators
to the death.
Nonetheless, in an era of comparative fault, it must be regarded as
a remarkable feat that an industry claimed to be responsible for the highest
toll of premature death in human history could withstand almost four decades
of litigation without paying a single adverse monetary award. Whatever
happens in the future, this record stands as an instructive lesson in the
limits of social control through the tort system.(147)
1. Defining Compensable Tobacco-Related Harm
The primary focus of a Tobacco Industry Compensation Fund would be on
whether the person incurred a tobacco-related harm. The fund would compensate
for harm arising out of long-term use of tobacco. A Tobacco Injury Compensation
Fund may have some difficulty in defining injury. Unlike the tort system,
however, problems of proof of causation are almost nonexistent.
A person wishing to recover from the tobacco compensation fund will only
have to prove that (1) they were long-term smokers (for instance, over
ten years), and (2) they suffered a disabling or life-threatening tobacco
related harm. Similar to the National Childhood Vaccine Compensation Program,
the claimant would establish an injury listed in a Tobacco Injury Table,
which would then create a presumption of causation.(148)
2. Compensation
Compensation would be limited but adequate to meet the patient's economic
need, which is not necessarily the same as her economic loss. Recovery
would be limited to unreimbursed medical expenses and lost earnings, and
would limit damages for pain and suffering.(149)
There could also be a fixed death benefit.(150)
3. Financing the Fund
Financing would be based on an annual yearly portion of the tobacco
industry's gross income and excise tax. The annual yearly portion of the
tobacco industry's gross income would continue indefinitely. Funding the
system in this manner would mean that it would approximate a comparative
fault scheme by placing the cost of the fund on both the tobacco producer
and the tobacco user. It may also result in a decrease in smoking.(151)
Contributions to the fund would be calculated based on the dominant broad
use by claimants.
4. Duty of Public Notice
The authorizing statute of the fund would create a duty on the tobacco
company to notify all consumers of tobacco of the fund's availability,
benefits, and limitations.
5. Attorney's Fees
If an individual hires an attorney because of a denial of a claim, the
prevailing individual's costs of suit or administrative costs, excluding
attorney's fees, would be payable by the defendant. The individual and
the attorney could make any appropriate agreement concerning attorney's
fees, but the department of tobacco-related injury compensation would have
the authority to approve or disapprove any attorney's fee agreement.
If the department disapproves, the attorney's services would be compensable
under a statutorily set rate.
6. Fiscal Stability
Any compensation scheme that proposes to include 100% of tobacco-related
injuries will face issues related to fiscal stability. Workers' compensation
schemes frequently confront issues of continued fiscal viability.(152)
In general, the rising cost of medical care for the injured worker has
placed workers' compensation systems in jeopardy.(153)
The state can absolutely control by statute the amount of benefits received
by the injured worker herself, but cannot control medical costs. Similar
problems will be faced by a Tobacco Injury Compensation Fund. However,
since all costs of the program will be passed on to the participants (the
tobacco industry and the smoking consumer), in the form of percent of profits
and excise taxes, the program should prove fiscally stable.
7. Constitutionality
In workers' compensation, a takings issue arises because the employer
forgoes its defenses and the employee gives up a right to full recovery,
both of which are arguably property rights. In New York Central Railroad
v. White,(154) however, the Supreme Court
held that the government has a right to add to, and subtract from, defenses
as a right of sovereignty.(155) The Court
also held that because the workers' compensation system incorporated a
quid pro quo (foregoing defenses in exchange for foregoing complete recovery),
the scheme did not constitute a taking.(156)
A tobacco injury compensation scheme incorporates the same quid pro quo.
The tobacco industry gives up their defenses, and smokers give up their
right to full recovery. Over the last ten years, however, the Supreme Court
has dramatically altered its view of what constitutes a taking, so that
its attitude about workers' compensation schemes may no longer hold.(157)
8. Political Feasibility
A few years ago, the political feasibility of instituting a tobacco
injuries compensation scheme would have been questionable. There was little
public concern about the so-called medical malpractice crisis and powerful
opposition to such a scheme.(158) Both
attorneys and tobacco companies have powerful lobbies that could effectively
oppose any state or federal attempts to institute a medical injuries no-fault
scheme.(159) The recent focus on the need
to reform the tobacco industry may make a tobacco injury compensation
scheme more appealing. In effect, the quid pro quo for the banning of class
actions, the barring of individual actions related to dependency and addiction,
and the banning of future state recovery should be the compensation of
tobacco related injuries.
Conclusion
I conclude exactly where I started: the tobacco industry specifically
targeted the African-American community for their product. They flooded
the African-American community with advertisements and cigarettes. They
promoted a more addicting drug in the African-American community. As a
result more African-American adults smoke, more are addicted, and more
have greater illness due to smoking. Any settlement with tobacco companies
must address the needs of the adult African-American community. The proposed
settlement and the enacting legislation are inadequate; they leave the
adult African-American community at the mercy of the tobacco companies
with little redress for the specific harm that has already occurred and
will continue to occur. The nation's minority communities have had a disproportionate
portion of illness and death from cigarettes, and any equitable settlement
must address their needs specifically. The restructuring of the tobacco
settlement must include specifically identifying as a priority the (1)
the funding of culturally specific cessation programs targeted toward African-Americans;
(2) the funding of biomedical research specifically addressing the issues
of African-American's addiction and dependence; (3) the funding of African-American
events historically supported by tobacco industries; (4) the limiting of
immunity to information disclosed prior to the enactment of any legislation;
and most importantly, (5) the establishment of a Tobacco Injury Compensation
Fund for addicted smokers.
Introduction
Proposed National Settlement
Targetting of African Americans
Being a Black Smoker
Restructuring theTobacco Settlement
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