Anti-smokers win pound of flesh while Third World gets fag-end

Tobacco companies are suffering at the hands of American lawyers. But the anti lobby should not celebrate too soon, says George Pitcher. George Pitcher is chief executive of issue management consultancy Luther Pendragon.

I have, to date, adopted a libertarian approach to smoking. This has largely been based on the simple philosophy that there is much that is dangerous about modern living – breathing exhaust fumes, for example, or crossing the road, or even performing both reckless acts at the same time. We choose to have cars, so we choose to pollute. We choose to smoke, so we choose carcinogens.

It follows that, within certain constraints, companies should be allowed to market wares to fulfil such choices. Those constraints should include restrictions on marketing to the vulnerable and sensible warnings of the dangers attached to some products. So we do not sell cigarettes to children. And, while it would seem unduly heavy-handed to warn people buying a car that it might kill someone, to print health warnings on packets of cigarettes seems sensible advice.

The libertarian marketer has to remain vigilant that such sensible demarcation lines are not rolled back by control freaks. I have long suspected that those exercised by the risks of passive smoking are less concerned with potential damage to non-smokers’ health than with a desire to stop other people doing something they enjoy.

It is, therefore, with some pleasure – even as a non-smoker – that I read that four highly eminent scientists in this field last week demonstrated that passive-smoking studies are flawed, that methods for detecting the presence of tobacco smoke in non-smokers are unreliable and that the levels of carcinogens in secondhand smoke are too low to cause cancer anyway.

At a business level, this should serve to blow away some of the hypocrisy with which regulators push the marketing of tobacco towards the outer reaches of snooker and motor sport sponsorship, while ensuring that we continue to enjoy the prosperity of the likes of BAT Industries and Hanson’s demerged Imperial Tobacco through the imposition of heavy excise duties. Either ban something or allow it to be properly marketed (within those sensible constraints mentioned) – you can’t, or shouldn’t, have it both ways.

As I say, this is the libertarian line, which necessarily has taken me higher up the sympathy scale towards tobacco companies than most of my colleagues (come to think of it, not wanting to see public garrottings of tobacco-company executives puts me higher up the scale than most of my colleagues). But even I have grown concerned lately that we libertarians may be taken for a ride. And, as is so often the case, this suspicion is fuelled by the appearance of a sub-species even more widely reviled than the tobacco company executive. I speak of the American lawyer.

American lawyers are, perhaps, unjustly accused of being the most venal creatures on earth – did you hear about the one who was found off the coast of Florida circling sharks? But as I watched those who are suing for tobacco damages on BBC’s The Money Programme last Sunday, and thought about those who might settle on behalf of the tobacco tycoons, I felt for the first time that libertarians might be missing the plot.

Last summer, the tobacco combines had their attention concentrated on the award of $750,000 by a Florida jury to a former smoker for tobacco-related illnesses.

Since then, US tobacco group Liggett, led by the flamboyant Bennett Le Bow, has indicated it may settle with litigants out of court over ten years if they agree to drop their cases. On the BBC last Sunday, Martin Broughton, chief executive of BAT, which owns the third-largest US cigarette group, Brown & Williamson, appeared to go down the out-of-court settlement route.

The major tobacco combines, including RJ Reynolds and Philip Morris, went into a federal courthouse in North Carolina on Monday to resist draconian new measures for the restriction of tobacco marketing by the Food & Drug Administration.

Meanwhile, in the wake of the Florida settlement, lawyers have taken to running TV ads for smokers and ex-smokers to join so-called class actions, in which rulings can be made on behalf of multitudes of plaintiffs. In short, the lawyers are creating money markets in which they will take multimillion-dollar turns.

There is nothing essentially wrong with this – indeed, it would be useful to know whether tobacco can legally be labelled a drug, so that we can treat it accordingly – other than the knock-on effect that will inevitably occur in less developed countries.

It works like this: lawyers will settle multibillion-dollar suits in the US. Americans will feel satisfied. Tobacco companies will, if you’ll excuse the expression, pick up the tabs. They will seek to recover the revenues elsewhere. Where? Why, in less developed economies where they already market high-tar products for high-margin purposes.

So, before the anti-smoking lobby gets too triumphalist about what legal ground it is winning in the US, it might consider who will organise class actions from Karachi to Khartoum. The global tobacco industries could subsidise their US liabilities with Third World marketing that would make the exploitative efforts by the developed world with powdered milk substitutes look like child’s play.

Litigants in the US hold no responsibility for what tobacco giants do elsewhere. But there are a lot of moral high horses being marshalled in the US and it is as well to remind ourselves of the price that other parts of the world pay for Western marketing sophistication.

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