Sunday, December 15, 2019

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Article Index

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.

 

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