Will NRA follow the path of Big Tobacco?

In the wake of the Parkland, Fla., school shooting, some say gun control activists should adopt the tools used against tobacco – from liability lawsuits to ad campaigns 'deglamorizing' consumer usage. But there are key differences between the two industries.

A big industry defended by powerful lobbyists. A product popular with grassroots supporters but reviled by critics as lethal. A nationwide debate that touches on deep aspects of American culture.

Guns in 2018? No, tobacco in 1998.

Twenty years ago, a historic settlement between tobacco firms and 46 states shackled the smoking trade in the United States. The industry agreed to pay states billions of dollars in damages, and to curtail much of its marketing. Tobacco dollars funded a new national anti-smoking advocacy campaign. Smoking rates in the US declined – and continue to go down.

Could that public health success be a template for anti-gun action? Some activists are now renewing calls for national gun-control organizations to focus on the tools used against tobacco, from liability lawsuits to gritty ad campaigns intended to “deglamorize” consumer usage. The theory: Back in the day, Big Tobacco seemed impervious against attack – until, suddenly, it wasn’t. Perhaps the same holds true for the National Rifle Association today.

But there’s a flaw in this chain of logic: Guns and tobacco occupy very different positions in American law. The Second Amendment to the Constitution is silent on the right to possess cigars. And firearms are symbolic in a way that tobacco is not. To many owners, they are about freedom, as well as shooting. They are emblems of a traditionalist vision for the country, plus a way to plink cans off the fence.

Still, comparing and contrasting these industries may be a good way to highlight and explain the strengths and vulnerabilities of both sides in the post-Parkland gun debate. For their part, the NRA and the gun industry may have learned from tobacco’s long experience in trying to stave off greater federal controls.

“There is some remarkable overlap between what the tobacco industry invented 30 years ago, and the strategy of the NRA and its supporters today,” says Mark Pertschuk, a longtime expert and organizer for both the anti-tobacco and anti-gun movements.

For instance, both the tobacco and gun lobbies have taken a muscular approach to combating criticism, including attempts to prevent government research on the health aspects of the issue in question, says Mr. Pertschuk, former longtime president of Americans for Nonsmokers’ Rights and former legislative director of the Coalition to Stop Gun Violence.

Back in the early 1990s, tobacco firms managed to block publication of an Environmental Protection Agency report on the dangers of secondhand smoke for more than two years. More recently, the NRA has effectively blocked the federal Centers for Disease Control from studying the effects of gun violence.

Today, one of the most important similarities between what used to be known as Big Tobacco and the NRA is the use of state preemption laws to block any gun violence reduction laws at the local level, says Pertschuk.

Take Florida. Back in 1985, the state legislature passed a law controlling the power of local officials to restrict smoking in public places. Similarly, under Florida law today, city or county leaders who enact or enforce firearms legislation in their jurisdictions face state-ordained punishments that can include removal from office.

The purpose of such laws is legal consistency, according to the NRA. NRA executive director Chris Cox has said they protect gun owners “from harassment by an unreasonable and confusing patchwork of municipal gun laws.”

However, a focused effort by gun-violence prevention groups, harnessing the energy created in the wake of the Parkland shooting, might be able to get some of these laws repealed, says Pertschuk. That would open the way for more liberal city governments to tighten gun laws, even in red states.

“If they did that, it would catch fire like the revolution against tobacco,” he says.

A historic settlement

The Tobacco Master Settlement Agreement of 1998 was struck between the four largest United States tobacco companies and the attorneys general of 46 states. The states agreed to drop mammoth lawsuits they had filed against the companies for the medical costs incurred by public programs such as Medicaid for treating tobacco-related illnesses. In return, the tobacco industry agreed to sharply curtail much of its advertising, make continued payments to the states for health care costs, and to establish an anti-smoking advocacy group called the Truth Initiative as part of its settlement payout.

Smoking was already on decline in the US in 1998. Since then, that trend has accelerated. At the time of the tobacco settlement, about 27 percent of Americans smoked at least once a week, according to Gallup historical data. The comparable figure for 2017 was 17 percent.

Smoking among teens has fallen even faster than it has among adults. About 23 percent of teens smoked in 1998; today, the rate is about 6 percent. Edgy anti-tobacco ads funded by the tobacco industry itself via the Truth Initiative are a big reason for this drop, according to some experts.

That’s led some gun-violence prevention activists to press for their own Truth Initiative – a national ad campaign devoted to making gun ownership seem less attractive, or to at least point out the costs of the nation’s high gun ownership rate.

Where would the money for such an effort come from? There’s no gun equivalent to the tobacco settlement, so the industry itself isn’t paying for it, obviously. Some experts have speculated that someone like billionaire Michael Bloomberg might back such an initiative, or lead the fundraising for it, in any case. The former New York mayor is a longtime anti-gun activist who backs the nonprofit group Everytown for Gun Safety.

But the effects of an anti-gun ad blitz might not be the same as those of the past anti-tobacco effort.

Smoking used to be a habit widely spread through all US demographics. As surprising as it may seem today, its dangers were not well understood until the 1960s. In 1964, the surgeon general published a sweeping report that drove home the point: smoking was a leading cause of national mortality. The report shocked the public, according to a Harvard Political Review 2016 analysis. It was one of the most followed news stories of the year.

“As a result of the Surgeon General’s report and the ensuring reforms, since 1964 the smoking population in the United States has steadily declined,” according to the Harvard Political Review.

In contrast, gun ownership is not widespread across demographic groups. Gun owners are much more likely to be white, male, and live in rural areas than non-gun owners (a 2017 Pew Research poll found that about half of all white men say they own a gun). They are fully aware that guns are dangerous. Given that many cite personal safety as the impetus for firearms purchases, that is often the point.

For many that own them, guns are a part of their identity. Many live in areas where gun ownership is the norm, according to Pew Research data. Sixty-six percent own more than one firearm.

The vast majority of owners say their guns are not just a practical object, but a symbol as well. A “defining characteristic” of gun ownership is the extent to which firearms are associated with a personal sense of freedom, wrote Pew in a 2017 report.

Seventy-four percent of gun owners say possession of a firearm is “essential” to their own sense of freedom, according to Pew. Only 35 percent of non-gun owners say the same.

“Integrated into the fabric of American society since the country’s earliest days, guns remain a point of pride for many Americans,” concludes the Pew study.

The Second Amendment

Perhaps the biggest difference between tobacco and guns is legal status. There is nothing in the Constitution about the right to smoke being necessary for a well-regulated militia.

For that and other reasons, tobacco was vulnerable to lawsuits prior to 1998. As a big, highly profitable industry, it wanted to get out from under this threat, and could afford to pay to do so.

“The tobacco industry was looking for a settlement,” says Timothy Lytton, a law professor at Georgia State University’s Center for Law, Health, and Society.

The gun industry is in a different position. It is much smaller, and thus unable to pay for an expensive, wide-ranging settlement. It has the constitutional bulwark. And Congress has further protected it via laws that make it difficult to sue gun makers or sellers.

Prior to the mid-2000s, some plaintiffs did successfully sue gun dealers on the grounds that they should have known that the product they were selling would be put to criminal use, notes Mr. Lytton, an expert on tort litigation and public policy and editor of the 2005 book, “Suing the Gun Industry.”

But in 2005, lawmakers passed, and President George W. Bush signed into law, the “Protection of Lawful Commerce in Arms Act.” The bill prohibits civil liability actions against the makers or sellers of guns and ammunition on grounds that purchasers used their products illegally.

“For the most part, [the 2005 bill] made it extremely difficult to sue a firearm manufacturer,” says Lytton. “We don’t see many lawsuits.”

As a result, an effective means of pressuring a large industry has been greatly restricted. Suing can be about more than just winning, after all. It spotlights industry practices. Plaintiff’s attorneys can produce lots of interesting documents due to the discovery process. It keeps an issue in the spotlight.

Take the long legal effort to get the Roman Catholic Church to shoulder responsibility for sexual abuse committed by priests.

“The wave of litigation, even when it lost, had a tremendous effect in framing [public opinion],” says Lytton.

The legal status of tobacco and guns may indeed be different. But there is one characteristic the two industries share, says John Tures, an associate professor of political science at LaGrange College in Georgia, who’s written on the issue. That characteristic is hubris.

Before the 1990s, Big Tobacco was seen as unassailable, says Dr. Tures. “Their perceived power led to a lot of arrogance,” he says. “They didn’t realize how quickly public opinion could change.”

Tobacco refused to compromise – and is now an endangered species, industry-wise.

Rather than follow that model, Tures says, gun proponents should look to a different (and perhaps surprising) one: the comic book industry. In the 1950s, violent comics were blamed for a spurt in crime, to the point where Congress held hearings on the subject. The industry quickly turned to self-regulation to head off government inquiries, emphasizing “positive” superheroes among other things.

For advocates of gun-violence prevention, a better analogy to consider as they press forward might not be tobacco – but automobiles, according to some experts.

Automobiles are a big public-health problem. Yet they are not going to be banned or even tightly controlled any time soon. What the US and other countries do instead is work to make them less deadly. This has been a slow process, but since 1921 it has reduced the death rate per mile driven by 95 percent.

The key there has been incremental movement. From seatbelts to national speed limits, child safety seats to airbags, gradual steps have saved lives.

Consider teenagers alone: The combination of a higher drinking age, increased license standards, and stiffer penalties for intoxication have lowered the chances of a teen dying in a car crash by 69 percent since 1978, according to Daniel Webster, director of the Johns Hopkins Center for Gun Policy and Research in Baltimore. A combination of incremental efforts might have the same effect with guns, he noted in an interview last fall.

Over time, the US could see steep reductions in its gun violence rate, says Dr. Webster.

“I do sense changes in the conversation, changes in the manner [the US deals with guns, that] I hoped for and cautiously predicted,” he says.

Clarification: This article has been updated to include additional information on the establishment of the Truth Initiative as part of the Tobacco Master Settlement Agreement.