Punishing the Tobacco Industry

What did F. Scott Fitzgerald, George Harrison, Babe Ruth, my grandfather and my grandmother all have in common? At first glance, not much. The first three were world-renowned champions of their instruments; Fitzgerald of the pen, Harrison of the guitar and Ruth of bat. Fitzgerald, Harrison and Ruth were (and are) internationally-recognized household names; the last two were only household names in my household. Regardless, the five share one unique similarity: they all smoked cigarettes, and as a result, they died before they should have. The first three died especially early: Fitzgerald at 44, Harrison at 58, and Ruth at 53.

Cigarette smoking is undeniably dangerous yet inexplicably prevalent. According for the Center for Disease Control, cigarette smoking accounts for an estimated 443,000 deaths per year in the US—that’s one in every five deaths! More people die as a result of smoking cigarettes every year than from HIV, illegal drug use, alcohol, auto accidents, suicides and murders COMBINED! Smokers are 2-4 times more likely to develop coronary heart disease than non-smokers. They’re 2-4 times more likely to have a stroke.  They’re 18 times more likely to develop lung cancer and they’re 13 times more likely to die from lung disease. In addition to the plethora of typically-known diseases that cigarette smoking causes, it often leads to infertility, stillbirth, low birth weight and sudden infant death syndrome.

You might say that smoking cigarettes is like playing Russian Roulette with a full chamber.

So, with such a dangerous product on the market, why aren’t the manufacturers of the deadly poison being penalized? The short answer is because they don’t say it’s healthy.  The Food and Drug Administration tried to implement regulations, but in 2001, the Supreme Court said the FDA didn’t have the jurisdiction to do so.  Seemingly, the FDA approves everything we ingest—from the Advil we take to for headaches to the turkey we eat on Thanksgiving.  Justice O’Conner ruled, however, that because the tobacco industry didn’t market tobacco products as having a medicinal value it could not be classified as a “drug” and therefore it did not fall under the umbrella of the FDA’s supervision.

Still, the tobacco industry has got to be at fault, right? Certainly tobacco is a harmful product, not just to the inhaler but to the bystander. Second-hand smoke has proven to be deadly. That would mean that the tobacco industry can be regulated under the harm principle which dates back to the 1700s. The harm principle essentially means that if the action of an individual (cigarette smoking) is dangerous to another individual (via second-hand smoke) then the government has not only the authority—but the responsibility—to regulate it. The fact is that this argument has stood in court and there have been monumental judgments made against the big tobacco industry. It really depends on who the judge is and where they stand on government intervention in the private sector (if you ask me, there’s nothing “private” about having toxic smoke blown in your face).

Here are some of the most famous cases which penalized the tobacco industry:

1. Burton vs. R.J. Reynold’s Tobacco (2002): a Kansas District Court awarded $15 million in punitive damages against R.J. Reynolds, calling the company’s (mis)conduct “highly blameworthy and deserving of significant punishment.”
2. Lukacs vs. Philip Morris (2002): a Miami jury awarded $37.5 million against three cigarette companies in a suit involving an ex-smoker who suffered losing his tongue due to tobacco-caused cancer of the mouth.
3. Bullock vs. Philip Morris (2002): an LA jury awarded $28 million in punitive damages against Philip Morris.
4. Frankson vs. Brown and Williams Tobacco Corp (2004): a NY jury issued $20 million to the wife of a smoker who died of lung cancer at the age of 57. This was a landmark case in that it was the first time that a NY court held a tobacco company responsible for an individual smoker’s death.

Tobacco is harmful.  It kills more people than any of the other issues which we’ve blogged about all put together. It’s a controversial subject which is why the industry that supports it and profits from it hasn’t been penalized appropriately. It’s perpetuated in society despite its proven consequences. Most recently, GOP presidential contender Herman Cain ran a television ad in which his chief of staff began to smoke a cigarette and blow smoke into the camera. He might has well have aimed .38 caliber at the camera or injected himself with heroin. The facts say that guns and heroin are less deadly than cigarettes. So I guess we know where this particular candidate stands on the issue of regulating the tobacco industry. It’s only a matter of time until Mr. Cain’s campaign goes up in smoke.

If you’ve been injured by the harmful effects of tobacco products, you may very well have a case.  As mentioned above, people have successfully sued the tobacco industry which profits off of a worldwide addiction laden with disease and death.

For more information, please contact the Law Offices of Aronberg & Aronberg at 561-255-9191 or email us at daronberg@build.simple.biz.

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