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COLUMN RIGHT : Vigilantes String Up the Marlboro Man : Two anti-cigarette decisions make a mockery of fair play.

August 19, 1990|BRUCE FEIN and EDWIN MEESE III | Bruce Fein is a constitutional scholar in Washington. Former Atty. Gen. Edwin Meese III is a Distinguished Fellow of the Heritage Foundation

Last month, the New Jersey Supreme Court joined California lawmakers in cutting its legal conscience to fit contemporary anti-cigarette fashions. In Dewey vs. Brown & Williamson Tobacco Co., New Jersey's highest tribunal held that cigarette companies could be answerable in damages under state law based on health warnings that satisfied federal law and on the defective design of cigarettes. In 1989, California inaugurated a broadcast crusade against tobacco manufacturers portraying their executives and smokers as morally akin to Saddam Hussein. Both demarches illustrate mob justice and undermine the arch of civilized government.

The Dewey case displayed judicial prejudice at its worst. Wilfred Dewey smoked cigarettes for four decades before his 1980 death stemming from lung cancer. His smoking continued after legions of federal trumpeters had sounded clarion calls of warning.

In 1964, the U.S. surgeon general issued a much ballyhooed report finding correlations between smoking and lung cancer, chronic bronchitis, emphysema, cardiovascular disease and cancer of the larynx. The following year, Congress enacted the Federal Cigarette Labeling and Advertising Act.

It required cigarette packages to warn that: "The Surgeon General Has Determined That Cigarette Smoking May Be Dangerous To Your Health." In 1970, the warning was made more definitive. The Federal Trade Commission issued companion rules regulating cigarette advertising.

Despite these unambiguous and omnipresent health warnings, Dewey chose to smoke in lieu of a more puritanical existence. He never protested that the pleasures he derived from cigarettes were not worth their health risks, and thus lacked any legitimate cause for complaint.

His widow, nevertheless, sued tobacco companies for damages on behalf of herself and her husband's estate. Resting on state tort law, the complaint charged the defendants with negligence in failing to adequately warn smokers of health hazards, and with strict liability for defectively designing cigarettes.

Addressing the first claim, the New Jersey Supreme Court parted company with contrary holdings by five federal appellate courts and its sister state court in Minnesota. This galaxy of wisdom had concluded that the federal Cigarette Act preempted state law damage claims based on inadequate warnings.

The express purposes of the federal law fortify these holdings: adequate cigarette health warnings and preservation of national cigarette markets. The first postulates that compliance with federal warning rules are adequate to inform the public. It is at war with any state rule authorizing damages by second-guessing of warning adequacy.

Further, it ignores commercial reality to insist that the second purpose would be undisturbed by acrophobic state liability risks based on inadequate labeling. They would compel tobacco manufacturers to atomize and tailor sales and promotions to fit disparate state tort laws.

The New Jersey Supreme Court, nevertheless, held that cigarette companies could be liable for damages by failing to volunteer more warnings than federal law stipulated. It also concluded that state law would make cigarette companies liable for injuries caused by smoking if a jury determines that a different cigarette design might have reduced health risks without impairing consumer utility.

But a design defect claim is a euphemism for vigilante justice. How do tobacco companies prove the utility of smoking? Do they call smokers to testify to the sensual, psychological or emotional benefits derived from cigarettes? How does a jury assign them a dollar value? Is the average utility to smokers the pertinent calculation, or the utility to deceased smokers whose deaths precipitated the lawsuits? How do manufacturers prove that altering the ingredients of cigarettes to reduce health risks would reduce consumer pleasures? Must they conduct expensive marketing experiments and user surveys? Must they prove that different ingredients would cause a substantial profit loss?

These questions corroborate that the Dewey ruling empowers juries to hold manufacturers liable for defective cigarette design by whim or enmity.

In 1989, California levied a 25-cent cigarette tax to fund a frenzied broadcast campaign against tobacco companies. The state-subsidized polemics mock elemental fairness and First Amendment principles because U.S. law prohibits cigarette companies from responding on the airwaves.

Genuine justice requires evenhanded protection of both the honorable and the hated. Anti-cigarette laws in New Jersey and California flunk the test.

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