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Nail Down the Tobacco Deal

Punishing the industry's mendacity isn't the top priority

June 29, 1997

The Senate Judiciary Committee ripped into the tobacco industry the other day, with its members expressing their contempt, frustration and disgust in unusually harsh language. "Liars" and "crumbs" were some of the labels applied to industry executives as the committee took its first formal look at the historic tobacco settlement struck last week. It was almost enough--almost, we emphasize--to evoke some sympathy for the hapless industry lawyer who, stonewalling to the end, blandly assured senators that he was simply in no position to say whether smoking causes cancer or tobacco smoke harms children.

The feelings of the industry and its representatives are in any case irrelevant to the central issue of what Congress should now do with the agreement negotiated by the attorneys general of 40 states with the tobacco companies. Some comments by committee members suggest the agreement might be in trouble unless the companies first admit that their top executives lied when they earlier swore before a House committee that the nicotine in cigarettes is not addictive. To admit such perjury would not only invite prosecution--something the Justice Department is already considering--but could also affect civil suits against the companies.

The companies have of course lied disingenuously in denying that nicotine is addictive. Their fortunes are in fact based precisely on the addictive power of that drug. But we hope that Congress doesn't make public confession the condition on which its endorsement of the tobacco agreement depends. In its basic framework the deal is simply too vital to be held hostage to that demand. Congress should instead work to strengthen the agreement, which commits the tobacco companies to paying $368 billion over 25 years to compensate the states for smoking-related health costs, settle class action suits and fund anti-smoking campaigns, especially those directed at young people. Two areas in particular need toughening.

First, no restrictions should be accepted on the Food and Drug Administration's authority to move swiftly to regulate nicotine. To deny the FDA that authority for 12 years, as the deal proposes, is unacceptable. And to require the FDA to show that a ban on nicotine would not produce a black market in nicotine-laced cigarettes is inherently absurd; neither the FDA nor anyone else can prove a negative. The FDA, as a federal court has held, has jurisdiction to regulate nicotine and other tobacco products. Congress must refuse to permit any industry-imposed fetters on that jurisdiction.

Congress should also remove from the deal provisions allowing the tobacco companies to finance their settlement payments by treating them as "ordinary and necessary business expenses," which means in effect that taxpayers will be subsidizing the payouts. An industry that has profited so enormously from pushing a product that it knew sickened and killed hundreds of thousands of people every year deserves to be severely penalized. To allow the costs of that penalty to be passed on to society at large would be morally repulsive.

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