Vernellia R. Randall, Smoking the African-American Community and the Proposed National Tobacco Settlement, 29 University of Toledo Law Review 677 (Summer, 1998) (158 Footnotes ) (Full Document)
Dedicated to the Memory of Ernest Randall 1916-1995
My great-grandfather, Manlis Randle, lived to be ninety-four years old; my grandfather, Tom Randall, the youngest child of slaves, lived to be ninety-seven years old. My father, an educated black man of the twentieth century, lived only to seventy-nine. He died of cancer after smoking cigarettes for over sixty years. He tried to quit smoking many times. He tried to quit smoking after developing throat cancer at sixty-two years old; he tried to quit after his brother, Arthur Randall, died of lung cancer; he tried the patches; he tried cold turkey; he tried hypnosis; he tried every smoking cessation known to man (or woman); he wanted to quit; he wanted a long life; but no matter how hard he tried, he always returned to his mentholated cigarettes. The first thing in the morning, (a smoke), the last thing at night (a smoke). My father smoked himself into an early grave. Cigarettes deprived me of a father and deprived my children of a grandfather. Who knows-- with the longevity in my family, they probably deprived my grandchildren of a great-grandparent.
THE tobacco industry specifically targeted the African-American community with their product. It disproportionately flooded the African-American community with advertisement and cigarettes. It promoted a more addicting drug in the African-American community. As a result, more African-American adults smoke, are more addicted, and have greater illness due to smoking. Any settlement with tobacco companies must address the needs of the adult African-American community. The proposed settlement and the enacting legislation are inadequate; it leaves the adult African-American community at the mercy of the tobacco companies with little redress for specific harms (addiction and dependency) that have already occurred and will continue to occur. In order to reach an equitable result, the restructuring of the tobacco settlement must include specifically identifying as a priority
(1) the funding of culturally specific cessation programs targeted toward African-Americans; (2) the funding of biomedical research specifically addressing the issues of African-Americans' addiction and dependence; (3) the funding of African-American events historically supported by tobacco industries; (4) the limiting of immunity to information disclosed prior to the enactment of any legislation; and most importantly; (5) the establishment of a Tobacco Injury Compensation Fund for addicted smokers.
I. The Proposed National Tobacco Settlement
On June 20, 1997, a group of State Attorney Generals, plaintiffs' attorneys, public health advocates, and representatives of major tobacco companies announced an historic national tobacco industry settlement. This proposed settlement was designed to restructure the tobacco industry and to reimburse participating states for their expenditures on smoking-related illnesses. Several bills were introduced into Congress to convert the proposed settlement into law. Special legal protection for the tobacco industry is the linchpin of the proposed settlement and the bills. In the proposed legislation, typically, the tobacco industry agrees to (1) drastically limit marketing and advertising; (2) accept regulation by the Food and Drug Administration; (3) finance programs aimed at deterring young people from smoking; (4) finance smoking cessations programs; and (5) partially reimburse the states for their tobacco-related health costs.
*679 The quid pro quo for the magnanimous concession on the part of the tobacco industry include (1) terminating existing class actions and barring future class actions or multi-case lawsuits against the companies; (2) terminating existing civil action claims and barring future civil action claims based on addiction or dependency; (3) capping the annual payments by the industry in judgments and settlements of lawsuits brought by individuals starting at $2 billion and rising to $5 billion; (4) prohibiting future lawsuits by states against the companies; and (5) eliminating punitive damage awards against the companies for past conduct.
Clearly, the most significant benefit in the bill to the African-American community bill is the limitation of advertising. The number one advertised product in African-American communities is cigarettes. Any ban on outdoor advertising will have a profound, positive effect on the African-American community. However, given the difficulty that black smokers have in quitting, and the substantial brand loyalty among smokers, such a ban really addresses new smokers and does little to help chronic smokers. While the proposed authorizing legislation requires the funding of biomedical research, it does not specifically require that biomedical research be conducted to address why African-Americans smoke less and have greater dependence. Similarly, while the proposed authorizing legislation requires the development of smoking cessation programs, it does not require the development of culturally specific smoking cessation programs. Furthermore, by banning class action suits, the proposed authorizing legislation effectively limits the ability of poor and middle class individuals to bring suits against richer tobacco companies and win. Finally, given the effect of mentholated cigarettes and the targeting of the African-American community, the banning of dependence and addiction suits bars a primary claim of African-Americans without providing any substantial relief for those individuals who are already addicted and who are unable to kick the habit. The tobacco company *680 should not be able to walk away from the billions of dollars of harm that they have caused and will cause by selling a deadly, addictive product.
The fact that the authorizing legislation does not directly address the needs of African-Americans is not surprising since it merely reflects the proposed settlement. It would be surprising indeed if the settlement adequately represented the interest of African-American communities since the negotiation table did not include any health representatives of the African-American community. It was pretty much a white male group that put the settlement together, and the document reflects that. The obvious retort is why should any tobacco settlement specifically address the needs of African-Americans? The simple reason is that tobacco companies have for years specifically targeted the community as much as they targeted underage smokers. As a result of pushing mentholated nicotine on the community, African-Americans are more addicted and have poorer health status than European-Americans. The quid pro quo for African-Americans needs to be very specific. The current proposals are insufficient.
II. Tobacco Industry Targeting of the African-American Community
For well over three decades, cigarette manufacturers have specifically targeted the African-American community. Recognizing a declining consumer base, tobacco companies have attempted to protect their profits by increasing smoking among African-Americans. It splashed inducements to smoke on billboards and buses, on subways, and in African-American publications. They sponsored athletic events, *681 outdoor media campaigns, sports/cultural events, and academic scholarships. The tobacco industry developed specially named brands targeted specifically toward African-Americans. Tobacco companies spent a disproportionate amount of their promotional budget in an effort to hook black smokers. Such conduct must be specifically addressed in any settlement; otherwise, the African-American community will feel two blows--one by the tobacco industry and one by the tobacco settlement.
A. Billboard and Magazine Advertising
To say that the black community has been overrun with tobacco advertising is an understatement. The size and number of billboards in minority communities have created an intrusive and persistent form of advertising.There is absolutely no way to avoid it. For instance, a 1987 survey conducted by the city of St. Louis found twice as many billboards in black neighborhoods as white. Almost 60% of the billboards in the black neighborhoods advertised cigarettes and alcoholic beverages. In another study of seventy-three billboards along nineteen blocks in a black neighborhood in Philadelphia, sixty advertised cigarettes or alcohol. In a 1989 survey by the Abel Foundation, 70% of the 2,015 billboards documented in the city of Baltimore advertised alcohol or tobacco products. Three-fourths of the billboards were in predominately poor African-American neighborhoods. In fact, the Center for Disease Control estimates that billboards advertising tobacco products are placed in African-American communities four to five times more often than in white communities. Furthermore, the advertisements are usually for menthol cigarettes, which are more popular with African-Americans and which have additional significant medical effects.
*682 In addition to billboard advertisement, tobacco companies advertised extensively in African-American magazines. In fact, cigarettes advertised in African-American magazines such as Ebony, Jet, and Essence account for a higher percentage of the minority magazines' total advertising revenues. For instance, in an eight-year period there were 1,477 tobacco advertisements in Jet, Ebony, and Essence. The tobacco industry poured millions of dollars into advertising in newspapers and magazines that serve the African-American community.
They win the lungs of Blacks . . . [by] playing on the image of success, upward mobility, stokes fantasies of wealth and power. . . . They design socially conscious ads in Black publications that tout Black leaders and celebrities, praise Black historical figures, scientists, artists and events and promote their sponsorship of scholarship, business and equal opportunity promotional programs for Blacks. . . .
B. Sponsorship and Donations
The tobacco industry has been a significant sponsor of athletic, civil, cultural and entertainment events. Its donations and sponsorships of African-American events and organizations dates back to 1938, when William Reynolds, R.J.'s brother, donated money to institute the Kate Bitting Reynolds Hospital for blacks in the segregated Winston-Salem, N.C., home of the R.J. Reynolds Tobacco Company. For example, the tobacco industry sponsored the fortieth anniversary gala of the United Negro College Fund, the Kool Achiever Awards, the Ebony fashion show, and a forum for publishers of black newspapers on preserving freedoms in American life.
Historically, the African-American community has had an ambivalent relationship with the tobacco industry. We have been a bought people. In exchange for good will, cigarette manufacturers have long supported the African-American *683 community. Key civil rights leaders sat on the boards of tobacco companies; African-American organizations received hundreds of thousands of dollars of tobacco money a year; and black Congress members received significant support from the tobacco industry. In fact, of the 435 members of the House of Representatives, Representative Charles Rangel was nineteenth on the list receiving $47,950, and Representative Ed Towns was fifteenth on the list receiving $51,075. Most of the organizations maintain that the tobacco companies attach no strings and make no attempt to influence their organizational policies. However, it is clear that this relationship resulted in the African-American leaders, newspapers, and other organizations abstaining from criticism of the tobacco industry. For instance, in 1991, not one black magazine publisher attended a meeting designed by Secretary of Health and Human Services Louis Sullivan to discuss the adverse affects of tobacco advertising in the African-American communities.
*684 Just as with organizations, Congressmen and women were beholding to their benefactors. While nine African-American Congressmen wrote the Food and Drug Administration in support of regulating tobacco as a drug, thirteen African-American Congressmen wrote in opposition. Similarly, while eighteen African-American Congressmen voted to kill a program that provides crop insurance and a government-run acreage allotment program for tobacco farmers at a cost to taxpayers of $25 million a year, nineteen African-American Congressmen voted to keep the program going. Furthermore, at a Congressional Black Caucus Foundation meeting, despite having identified sixty-five issues to be addressed, not one dealt specifically with smoking.
C. Special Brands
Cigarette companies developed special brands to market directly to the African-American communities. In 1990, R.J. Reynolds planned to market a menthol cigarette called Uptown. R.J. Reynolds denied that the name was chosen because of the connotation to New York City's Harlem community, but rather because it was a classy name. However, the marketing plan called for ads suggesting glamour, high fashion, and nightlife. Furthermore, the cigarettes were to be packaged with the filter facing down because black smokers tend to open their cigarettes from the bottom. Thus, with 69% of black smokers preferring menthol cigarettes, it was clear that blacks were the target audience for the product. Because of the pressure of public outrage, R.J. Reynolds Company canceled the test marketing of Uptown.
In 1995, a cigarette distributor in Massachusetts packaged cigarettes in red, black and green, placed an X on them, and called them Menthol X. Red, black, and green are the symbolic colors of black liberation and X is associated with Malcom X. The Massachusetts community forced the distributor to pull Menthol X off the shelves. In 1997, R.J. Reynolds introduced a mentholated version of Camel. *685 Many believed that such a step was an aggressive target toward the African-American community that disproportionately smoked menthol cigarettes. The California African-American community protested R.J. Reynold's plan and the cigarette was withdrawn.
D. Promotional Budget and Effort
Even though African-Americans make up only 10% of the population, a disproportionate amount of the tobacco industry's budget has been targeted toward increasing the percentage of black smokers. For instance, in 1973 Brown & Williamson spent 17% of its promotional budget for Kool cigarettes targeting the African-American community. At the same time, even though the company was already using virtually all known vehicles to reach blacks effectively and efficiently, Brown & Williamson recommended spending more due to a response to trends among young people of the ages sixteen to twenty-four. With this additional transit effort, Kool would cover the top twenty-five markets in terms of absolute Negroes. The document also stated that [a]t the present rate, [black] smokers in the 16-to 25-year age group will soon be three times as important to Kool as a prospect in any other broad age category. In 1963, the Ligget Tobacco group considered the following marketing approach: While in the case of the Spanish and Negro markets, there must be a racial slant. They can be reached only by promotion that they understand, i.e. Negro salesmen and media, but not exclusively.
A 1969 R.J. Reynolds memorandum suggested ways to better reach African-Americans: It generally is not as effective to aim at the Negro consumer, as such, as it is to aim at his decisive motivations. . . . Quality rates as a cherished attribute. Negroes buy the best Scotch as long as the money lasts, most marketers agree. The memorandum also suggested that advertisements should avoid physical contact between models of different races.
A 1973 R.J. Reynolds Tobacco Company marketing profile included a study of black smokers ages fourteen to twenty. In a 1978 research study, Lorillard Tobacco Company, noting the success of its Newport brand and that the brand was being *686 purchased by African-Americans of all ages, emphasized that the base of our business is the [black] high school student.
In 1981, a Reynolds marketing plan stated that [t]he majority of Blacks do not respond well to sophisticated or subtle humor in advertising. They related to overt, clear-cut story lines.
As can be expected, the tobacco industry denied targeting the African-American community: There is absolutely no truth to the contention that the [[[[Camel menthol] brand is being targeted to African-Americans or any other specific ethnic group. In fact, R.J. Reynolds asserted that the African-American community was being unreasonable in believing that market strategy would target a specific population. However, as a result of documents released as a part of tobacco litigation/settlements, it seems that just because you're paranoid doesn't mean they're not out to get you. The documents prove that African-American perceptions were accurate.
III. Being a Black Smoker
The marketing, advertising and promotional blitz has had its effect. A greater percentage of African-American adults are smokers. This is particularly true for men. In 1987, 30.7% of white men twenty years and older were smokers, while 40.3% of African-American men were smokers. The smoking rate between black women and white women was essentially the same, with 27.3% of white American women twenty years and older being smokers and 27.9% of African-American women. However, African-American smokers smoke approximately 35% fewer cigarettes per day than do white smokers. Nevertheless, African-Americans have higher rates of most smoking-related diseases. This may be a result of the fact that *687 African-Americans smoke disproportionately more mentholated cigarettes. Eighty percent of African-American smokers smoke mentholated cigarettes while only 25% of white smokers smoke mentholated cigarettes. This use of menthol is associated with increased health risks and has resulted in significantly poorer health status for African-Americans.
A. The African-American Smoker
African-Americans start smoking later than white Americans. Since 1970 the prevalence of smoking among African-American adolescents (especially teenage girls) has declined. However, even though African-Americans are strongly motivated to quit smoking, fewer African-Americans than white Americans are able to do so. Furthermore, African-Americans are less likely to abstain for over a year. Consequently, African-Americans are more likely to be long-term smokers.
*688 In addition, African-American smokers are not heavy smokers. In fact, the average adult, African-American smoker smokes significantly fewer cigarettes than the average white adult smoker. However, despite the fact that African-Americans start later in life and smoke fewer cigarettes, they show high levels of nicotine dependence. It is puzzling that African-Americans have more illness even though they start smoking later in life and smoke fewer cigarettes. Part of the reason for this lies in the African-American preference for mentholated brands which are high in tar and nicotine. Although menthol is a naturally occurring alcohol, most of the menthol currently used is synthetic. Menthol is used in a number of commercial products such as toothpaste, mouthwash, and foods. It is considered not directly carcinogenic and is rated generally regarded as safe by the Food and Drug Administration. About 75% to 90% of African-Americans report a preference for menthol compared to only 23% to 25% of white Americans. This menthol brand preference is not related to educational level, occupational class, or age. Not only do menthol *689 cigarettes tend to be higher than nonmenthol cigarettes in tar and nicotine, but they may also have their own independent effect on addiction and dependency, which has not been adequately studied.
Only two studies to date have directly addressed the relationship between smoking mentholated cigarettes and the increased cancer risk in African-Americans. The studies made opposite conclusions, leaving unanswered the question of whether menthol explains the black-white lung cancer difference. Furthermore, no study has been made into the addictive and dependency power of menthol combined with nicotine. Simple logic says that African-Americans who smoke mostly mentholated cigarette may be trying to kick two habits--nicotine and menthol. While simple logic may be wrong, no settlement should be made until the answer to the question is proven through biomedical research.
This lethal preference for menthol brands by African-American smokers is shaped by targeted advertising campaigns by the tobacco industry, which advertises these brands in culturally specific magazines and on billboards in predominantly African-American neighborhoods. In fact, the success of menthol brands are almost entirely tied to the African-American market. Menthol cigarettes were introduced in the 1930s, but did not exceed 3% of the total market until 1949. In the 1960s, advertising for menthol cigarettes began appearing in Ebony, an African-American-oriented magazine. By 1963 the market share was 16%, and by 1976 it was 28%. Sales to African-Americans accounted for the vast majority of this increase. It is clear that the tobacco company targeted the African-American community, but they pushed on them a drugged, enhanced version (menthol) which is more addicting and more deadly.
B. African-American Health Status
The fact that African-Americans are sicker and are dying at a higher rate than European-Americans is not news. African-Americans have more illnesses, have lower survival rates, and die at greater rates than white Americans. The excess death rates for African-Americans have exceeded those for white Americans for every major chronic condition except chronic obstructive pulmonary disease. That is, for every 100,000 persons, 511 white persons die from major chronic illnesses while 779 *690 black persons die. Thus, there were 268 black persons who would not have died from major chronic illness if they had been white. In fact, before the age of sixty-five, African-American smokers lose twice as many years of potential life as white smokers. Quite literally, being a black smoker is more dangerous to your health than being a white smoker.
TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE
One of three cancer deaths in America is related to tobacco use, and African-American communities are disproportionately its victims. Tobacco-related cancers account for approximately 45% of the incidence of cancer in African-American men and 25% of the incidence in African-American women. The incidence of oral cavity and pharynx cancer in black men exceeds white men by 49.1%. The incidence of lung and bronchus cancer in black men exceeds white men by 40.7%. And to a somewhat lesser degree, the same pattern is true for women. *691 Furthermore, African-American smokers (women in particular) have significantly higher lung cancer rates for any given level of smoking.
After having developed cancer, European-Americans are more likely to survive it than African-Americans. For instance, the five-year survival rate for European American men for oral cavity and pharynx cancer exceeds that of African-American men by 12.9%. Similarly, the five-year survival rate for white American men for lung and bronchus cancer exceeds that for black men by 1.3%. And to a lesser degree, a similar pattern is true for women. In addition to mortality, African-Americans suffer greater morbidity than do white Americans. For instance, even though African-American women smoke fewer cigarettes than white American women, African-Americans have lost greater permanent lung capacity. Furthermore, tobacco smoking does not affect only the health of the smoker, but also that of the infant if a woman smokes during pregnancy. In 1987, for every 100,000 infant deaths, 8.6 white infants died compared to 17.9 black infants.
At this point it is unclear what the tobacco industry knew about the addicting power of mentholated nicotine. Given the significant difference in dependence and the health status of smokers of mentholated cigarettes, it would be another injury to the African-American community not to have its specific harm addressed in any tobacco settlement. African-Americans find smoking socially unacceptable, tend to start smoking later in life, smoke fewer cigarettes per day, are strongly motivated to quit and have a high nicotine dependence, making abstinence difficult even for lighter smokers. It is the higher nicotine dependence that makes it harder for black smokers to quit. It is the preference for mentholated brands that may explain why African-Americans smoke fewer cigarettes but have higher cancer rates.
The tobacco industry has used targeted advertizing to effectively drive up their sales and profits. In doing so, it drove up the death rate of African-Americans. *692 Consequently, Congress should not pass any legislation that does not specifically address the needs of African-Americans.
IV. Restructuring the Tobacco Settlement
The primary focus of the settlement and the resulting legislation is to decrease youth smoking. Certainly, decreasing underage smoking is a commendable goal, but it remains insufficient for the African-American community. Underage smoking has been on the decline in African-American communities for many years. Only 1% of African-American girls are frequent smokers compared to 20% of white girls. African-American boys also smoke at lower rates than whites, 9% compared to 18%. This racial gap in smoking remains consistent across education and economic lines. Thus, an agreement which focuses primarily on underage smoking and advertising fails to focus on the most significant problem for African-Americans--adult smoking caused by the targeting of the African-American community. The settlement and the resulting legislation fails to mention African-Americans and their special relationship with the tobacco industry. The goal of decreas[[ing] tobacco use by all Americans by encouraging public education and smoking cessation programs and to decrease the exposure of individuals to environmental (second-hand) smoke is worthwhile. However, just as the industry targeted the African-American community for the sale of its product, the remedies should also be targeted. The restructuring of the tobacco settlement must include (1) the funding of culturally-specific cessation programs targeted toward African-Americans; (2) the funding of biomedical research specifically addressing the issues of African-Americans' addiction and dependence; (3) the funding of African-American events historically supported by tobacco industries; (4) the limiting of immunity to information disclosed prior to the enactment of any legislation; and most importantly, (5) the establishment of a Tobacco Injury Compensation Fund for addicted smokers.
A. Funding Cessation Programs and Biomedical Research Targeted Toward African-Americans
The authorizing legislation should specifically set a certain percentage of the tobacco settlement fund for the development of cessation programs that are specifically designed for African-Americans. Similarly, it should also include *693 funding biomedical research into the difference between African-American and white smokers, especially the health effects of mentholated and high tar cigarettes. Previous research indicated a marked difference in biochemical levels between African-American smokers and white smokers. Without a specific study into the difference, effective cessation programs for African-Americans cannot be developed.
B. Funding of African-American Events and Organizations
The authorizing legislation should establish a fund that would disburse grants to African-American groups that relied on tobacco company sponsorship and are no longer able to do so because of the ban on advertising contemplated in the settlement. Such groups would include organizations such as newspaper owners, farmers and other business owners, as well as public service organizations which have traditionally sponsored events which will be affected by the tobacco legislation. Several bills already introduced have sections which provide for the sponsorship of such events; however, they do not specifically address the unique issues of the African-American community.
C. Limiting Immunity
Any grant of immunity should be limited, especially as to the issue of addiction and dependence. The tobacco industry should be required to disclose all relevant documents. Furthermore, punitive damages should be retained with respect to claims based on facts not disclosed by the tobacco manufacturers to Congress and the public.
D. Establishing a Tobacco Injury Compensation Fund
While cessation programs are important, especially programs geared toward the needs of African-Americans, the reality is that African-Americans have more *694 difficulty quitting smoking than do European-Americans. This increased difficulty may be related to their preference for mentholated cigarettes which were specifically marketed toward African-Americans. This increased difficulty in quitting means that a significant number of current adult African-American smokers will continue to be disproportionately affected by the health risk associated with smoking. However, without class action suits, poor and middle class African-Americans will have a difficult, if not impossible, time sustaining lawsuits to recover their damages. Given the addictive nature of nicotine and the specific targeting of African-Americans, individuals ought to be able to recover their medical and economic expenses from the tobacco companies without having to sue.The tobacco settlement proposal limits the ability of individuals to sue under class actions and limits recovery for individuals in the tort system. However, the tort system results in a significant degree of chance, heavy transactional costs, inadequate compensation recovery, and ineffectual deterrents. Probably of greatest importance is the significant element of chance which exists under the tort system. Recovery is speculative and has been equated to a lottery. For instance, even though 17% of adverse outcomes in medical patients are traceable to negligence, under the current tort recovery system only 10% of injured patients eventually file a claim, and only 4% actually receive compensation. The persons least likely to receive compensation are likely to be those least able to afford the injuries: the poor, women, and minorities. These groups have historically had inadequate access to the legal system, which clearly affects their ability to recover for tobacco injuries.Additionally, the tort system bears heavy transactional costs. Even for those who actually receive compensation, the transactional costs created by the process are immense. Plaintiffs incur significant costs in time, money, and stress. For instance, the average medical malpractice claim takes over eighteen months to settle or adjudicate. Much of this time is attributable to delay as a defense maneuver. The cost of an individual litigating tobacco claims will be significant, and the psychological stress will be substantial and real.
Furthermore, the current tort system provides inadequate recovery. Even after investing time, money, and stress, the plaintiff's recovery is still likely to be inadequate to compensate her economic losses. In fact, up to 40% of any award is *695 distributed as attorney fees. Thus, even if an individual overcomes the difficulty of recovering under the tort system, compensation is likely to be inadequate.
Finally, the current tort system provides ineffectual deterrents. Whether the tort system deters substandard behavior is, at best, speculative. The question is whether the tobacco industry will alter their behavior to conform to the legal standard. After all, only theoretical possibilities have been articulated, and no real and substantial deterrent effect has been proven.
The present system is inadequate to handle the task of fairly distributing the cost of injuries. In addition to fairness problems, the present system exacerbates the cost of tobacco-related injuries through transactional costs, social costs of delay and disability, and individual costs.
Because tobacco related injuries have such difficult problems of proof and are so indirect in causation, it widens the gap between injury and compensation. For these reasons, it would be wise to consider some alternative to the present tort system to allocate the burden for injuries that are caused to individuals. That alternative would be a fully funded Tobacco Injury Compensation Fund. There will likely be a reluctance to expend limited resources on those who knowingly encounter a risk for no good reason. However, for current smoking adults the risk of becoming dependent or addicted was not one they knowingly encountered. Furthermore, until the true addictive nature of mentholated nicotine is made known, the tobacco company should be held responsible. Finally, the tobacco industry has a long history of fighting individual tort litigators to the death.
Nonetheless, in an era of comparative fault, it must be regarded as a remarkable feat that an industry claimed to be responsible for the highest toll of premature death in human history could withstand almost four decades of litigation without paying a single adverse monetary award. Whatever happens in the future, this record stands as an instructive lesson in the limits of social control through the tort system.
1. Defining Compensable Tobacco-Related Harm
The primary focus of a Tobacco Industry Compensation Fund would be on whether the person incurred a tobacco-related harm. The fund would compensate for harm arising out of long-term use of tobacco. A Tobacco Injury Compensation Fund may have some difficulty in defining injury. Unlike the tort system, however, *696 problems of proof of causation are almost nonexistent. A person wishing to recover from the tobacco compensation fund will only have to prove that (1) they were long-term smokers (for instance, over ten years), and (2) they suffered a disabling or life-threatening tobacco related harm. Similar to the National Childhood Vaccine Compensation Program, the claimant would establish an injury listed in a Tobacco Injury Table, which would then create a presumption of causation.
Compensation would be limited but adequate to meet the patient's economic need, which is not necessarily the same as her economic loss. Recovery would be limited to unreimbursed medical expenses and lost earnings, and would limit damages for pain and suffering. There could also be a fixed death benefit.
3. Financing the Fund
Financing would be based on an annual yearly portion of the tobacco industry's gross income and excise tax. The annual yearly portion of the tobacco industry's gross income would continue indefinitely. Funding the system in this manner would mean that it would approximate a comparative fault scheme by placing the cost of the fund on both the tobacco producer and the tobacco user. It may also result in a decrease in smoking. Contributions to the fund would be calculated based on the dominant broad use by claimants.
4. Duty of Public Notice
The authorizing statute of the fund would create a duty on the tobacco company to notify all consumers of tobacco of the fund's availability, benefits, and limitations.
5. Attorney's Fees
If an individual hires an attorney because of a denial of a claim, the prevailing individual's costs of suit or administrative costs, excluding attorney's fees, would be payable by the defendant. The individual and the attorney could make any appropriate agreement concerning attorney's fees, but the department of tobacco-related injury compensation would have the authority to approve or *697 disapprove any attorney's fee agreement. If the department disapproves, the attorney's services would be compensable under a statutorily set rate.
6. Fiscal Stability
Any compensation scheme that proposes to include 100% of tobacco-related injuries will face issues related to fiscal stability. Workers' compensation schemes frequently confront issues of continued fiscal viability. In general, the rising cost of medical care for the injured worker has placed workers' compensation systems in jeopardy. The state can absolutely control by statute the amount of benefits received by the injured worker herself, but cannot control medical costs. Similar problems will be faced by a Tobacco Injury Compensation Fund. However, since all costs of the program will be passed on to the participants (the tobacco industry and the smoking consumer), in the form of percent of profits and excise taxes, the program should prove fiscally stable.
In workers' compensation, a takings issue arises because the employer forgoes its defenses and the employee gives up a right to full recovery, both of which are arguably property rights. In New York Central Railroad v. White, however, the Supreme Court held that the government has a right to add to, and subtract from, defenses as a right of sovereignty. The Court also held that because the workers' compensation system incorporated a quid pro quo (foregoing defenses in exchange for foregoing complete recovery), the scheme did not constitute a taking. A tobacco injury compensation scheme incorporates the same quid pro quo. The tobacco industry gives up their defenses, and smokers give up their right to full recovery. Over the last ten years, however, the Supreme Court has dramatically altered its view of what constitutes a taking, so that its attitude about workers' compensation schemes may no longer hold.
8. Political Feasibility
A few years ago, the political feasibility of instituting a tobacco injuries compensation scheme would have been questionable. There was little public concern about the so-called medical malpractice crisis and powerful opposition to such a scheme. Both attorneys and tobacco companies have powerful lobbies that could effectively oppose any state or federal attempts to institute a medical injuries no-fault scheme. The recent focus on the need to reform the tobacco industry may make *698 a tobacco injury compensation scheme more appealing. In effect, the quid pro quo for the banning of class actions, the barring of individual actions related to dependency and addiction, and the banning of future state recovery should be the compensation of tobacco related injuries.
I conclude exactly where I started: the tobacco industry specifically targeted the African-American community for their product. They flooded the African-American community with advertisements and cigarettes. They promoted a more addicting drug in the African-American community. As a result more African-American adults smoke, more are addicted, and more have greater illness due to smoking. Any settlement with tobacco companies must address the needs of the adult African-American community. The proposed settlement and the enacting legislation are inadequate; they leave the adult African-American community at the mercy of the tobacco companies with little redress for the specific harm that has already occurred and will continue to occur. The nation's minority communities have had a disproportionate portion of illness and death from cigarettes, and any equitable settlement must address their needs specifically. The restructuring of the tobacco settlement must include specifically identifying as a priority the (1) the funding of culturally specific cessation programs targeted toward African-Americans; (2) the funding of biomedical research specifically addressing the issues of African-American's addiction and dependence; (3) the funding of African-American events historically supported by tobacco industries; (4) the limiting of immunity to information disclosed prior to the enactment of any legislation; and most importantly, (5) the establishment of a Tobacco Injury Compensation Fund for addicted smokers.