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Editorial: Smoke signal

An anti-tobacco verdict mocks law and democracy

Friday, July 21, 2000

Given the industry's history of evasion and equivocation about the health risks of smoking, it is tempting to welcome as a comeuppance a Florida jury's $144.8 billion judgment against six tobacco companies.

The temptation should be resisted. The judgment is a disgrace to the American legal system and an affront to democracy.

By hitting the tobacco industry with the largest punitive damage award in U.S. history, the six jurors in the class-action lawsuit sought to send a message. Unfortunately, the verdict says more about the state of the nation's legal system than it does about the sins of the tobacco industry.

By undermining the credibility of the legal system, these jurors may have harmed genuine victims in need of legal redress in other cases more than they have harmed the tobacco companies - which are likely to prevail on appeal.

Tort law, the notion that victims of negligent or reckless behavior deserve to be compensated and that such compensation will have a deterrent effect on future negligence, has a long tradition in England and the United States. A car buyer whose purchase blows up when operated as intended; a family exposed to harmful toxics from a neighboring utility plant; fishermen whose livelihoods are threatened by a negligent oil spill - these are the kinds of victims whom tort actions are meant to protect. But a smoker in the year 2000?

The Florida jury was understandably incensed by the tobacco industry's insidious behavior - marketing to teen-agers, lying about their products' addictive power, questioning causal links between smoking and cancer and so on - over the past half-century. But in their eagerness to teach loathsome companies a lesson, they lost sight of the fact that their "class" of plaintiffs, Florida's hundreds of thousands of smokers, were not helpless victims. What the trial did not explore, and what the jury wasn't interested in contemplating, was the extent to which these people freely decided to smoke, knowing it was harmful.

As early as 1949, polls showed that a majority of Americans believed smoking to be harmful. By 1964, almost 40 years ago, the surgeon general warned so. Are we truly to believe that these hundreds of thousands of Florida smokers were taking their medical advice from the Tobacco Institute?

The six tobacco companies' appeals in the Florida case will stretch out for years. Few legal observers expect the stunning damage award - amounting to 10 times the companies' combined net worth - to stand.

In the meantime, cigarettes will continue to kill people, a fact with which our democracy will continue to grapple. Should we allow smokers to continue enjoying this "freedom" or should tobacco products be outlawed? Should Congress at least give the Food and Drug Administration the power to regulate nicotine as a drug? (Our answer is yes.) Should Washington continue to subsidize tobacco farmers and discount cigarettes for servicemen?

These issues should be confronted by the people's elected representatives. They should not be hijacked by the judicial process under the guise of a tort case.

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