Jackhammer on Tobacco Road

Clinton's civil suit against the industry has potholes

The Clinton administration has finally acted to force the tobacco industry to shoulder more of the health burden caused by its products. It also wants to prod the industry to stop opposing government efforts to regulate nicotine as a drug. Those are laudable ends.

But the Clinton Justice Department's method - a lawsuit against the industry that's fraught with legal questions and political motives - is suspect. It may not stand up in court.

First, consider the basis for this suit - that the tobacco companies hoodwinked the public and the government for decades, colluding to withhold information that would have reduced its negative impact.

There's no question the industry did what it could to downplay tobacco's harm. But it will argue that the government was by no means ignorant - after all, it instituted warnings on cigarette packs in the 1960s.

The government, moreover, was promoting tobacco, supporting prices to tobacco farmers, and encouraging tobacco exports. Most notably, it was happily taking in billions of dollars in excise taxes on cigarettes.

Would official policy toward tobacco have changed if all the scientific research results that the companies had about their products had become public decades ago - particularly the addictive nature of nicotine?

In court, the government will argue that tobacco executives, better than anyone else, understood nearly a half century ago that nicotine was powerfully addictive. They'll contend the executives hid that fact in collusion, and thus became virtual drug dealers, peddling their wares, even to children, under the guise of a legal product.

That charge of industrywide fraud is one reason the Justice Department took the unusual step of using anti-racketeering laws - normally used against the mob - in this case. (Such laws also allow for triple damages, which would get the government more money for health programs.)

Even if a court accepts the argument that the industry conspired to hide the effects of nicotine, how will it view the government's role in ignoring the effects and even promoting and taxing tobacco? And is any industry with potentially harmful products - from food to cars - now vulnerable to this new use of anti-racketeering laws? The burden of proof on the government will be substantial.

Then there's the political context of this case. Ever since 46 states won $206 billion from the industry in a settlement last year, the federal government has been trying to play catch-up on this issue - and fumbling.

The Justice Department tried to find a credible criminal case against the tobacco industry but gave up. A civil suit, with its lower standard of proof, became the easier course.

But many at Justice, including Attorney General Janet Reno, have had doubts. Those doubts dissolved last January when President Clinton endorsed a civil case against the tobacco companies in his State of the Union address.

Clinton, understandably, wants a clear victory against this industry in his presidential resume. He and other Democrats may also want this case to be pending as next year's presidential contest revs up. It's commonly speculated that a Republican president won't pursue the case, while a Democrat one would.

We hope our national leaders would have had sounder tactics in bringing the tobacco firms to heel. We'd like stronger regulation of tobacco as a drug and an end to tobacco sponsorship of sports events.

But this case seems a shaky vehicle for moving the antitobacco agenda forward. Legislation is the best way. Despite last year's failure in Congress of a bill that would have accomplished all of the above, we urge right-minded lawmakers to keep at it.

Big Tobacco's political power can only continue to decline as we see through its smokescreen of deceit.

(c) Copyright 1999. The Christian Science Publishing Society