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Editorial: Tobacco twist Bypassing Congress, the industry settles with state AGs Wednesday, November 18, 1998
Assuming enough other states sign on, Pennsylvania will receive $11 billion over the next quarter century from an agreement between the tobacco industry and eight state attorneys general.
The overall cost of the settlement - $206 billion over 25 years - will be passed along to smokers, who will eventually pay 35 to 40 cents more for a pack of cigarettes, a privately levied "tax" that should discourage sales. And cigarette makers would radically curtail their advertising, refraining from pushing their wares with cartoon characters or billboards at sports stadiums.
If the result of this agreement is a decline in smoking and the diseases that have been convincingly linked to that habit for 35 years, no one should quibble.
Still, this newspaper would have preferred that further regulation of tobacco be accomplished legislatively by the U.S. Congress. But Congress has played possum on this issue. It began to debate new restrictions on smoking only after a one-two punch from the Clinton administration and the state attorneys general. Mr. Clinton cleverly packaged new restrictions on smoking as a "children's issue," and the attorneys general successfully threatened cigarette manufacturers with lawsuits seeking to recover Medicaid costs attributable to smoking.
The result of the attorneys generals' agitation was an agreement in June 1997 that was more sweeping than the one announced this week. But Congress failed to pass legislation giving force to the agreement, partly because the tobacco companies rebelled when the legislation was reshaped in a way that would have cost them more money and made them more vulnerable to litigation.
So the state attorneys general went back to the drawing board. This week's agreement with the industry is designed to cover 46 states. Four other states - Texas, Florida, Minnesota and Mississippi - already had settled with tobacco companies in agreements that will cost the industry $40 billion.
So is this a case of all's well that ends well? The basic trade-off - payments by the industry in exchange for protection against lawsuits - makes sense. And if Congress had tried to impose restrictions on the advertising of what is still a legal product, it could have run afoul of the First Amendment's free-speech guarantees.
Still, we're left with a nagging sense that a desirable social objective will be achieved through the back door. As we have observed before, Congress always had the authority to tax tobacco consumption, to classify nicotine as a drug and even to outlaw cigarettes if it so chose.
But the political will has been lacking, and the states and the Food and Drug Administration have moved into the vacuum, sometimes with more zeal than plausibility. (For example, it was simplistic, but effective, to suggest that Joe Camel and other advertising icons were aimed only or even primarily at children.)
Smoking is indeed a public-health issue and a national issue, at that. Taxing and regulating tobacco are within the purview of Congress, which has jurisdiction over interstate commerce and the general welfare. But when legislators abdicate their responsibilities, it's hard to blame others for moving to fill the gap.
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