Federal tobacco lawsuit contaminated by hypocrisy

By David Ridenour
web posted October 25, 1999

When the federal government announced on September 22 that it was suing U.S. tobacco companies to recover funds the federal government spends each year on smoking-relating health costs, more than one person quizzically asked: But doesn't the government support tobacco farmers?

Yes.

This seeming inconsistency in the government's tobacco lawsuit is just one of many contradictions that ultimately show the lawsuit for what it truly is: a flawed legal filing designed more to build the political fortunes of a discredited and impeached administration than to do anything positive for the people or government of the United States.

The federal government's tobacco lawsuit is insincere, deceptive and, ultimately, hypocritical.

The government itself distributed cigarettes free to servicemen until 1974, a full decade after the famous 1964 Surgeon General's warning, in its report, "Smoking & Health - Report of the Advisory Committee to the Surgeon General of the Public Health Service," advising all America that smoking causes disease.

To win the case, among other things, the government must prove that it paid Medicare benefits to smokers while unaware of tobacco's danger, despite the aforementioned Surgeon General's report made public before Medicare's creation.

The government profits more from tobacco sales than the tobacco companies. Tobacco companies make about 28¢ per pack. Cigarette taxes average 53¢ per pack. The government also saves 32¢ per pack because, by dying younger, smokers use less government benefits. State governments further benefit from the 1998 "litigation tax" imposed when tobacco companies settled state lawsuits for $246 billion. The Congressional Research Service, Congress's objective, non-partisan research arm, reported recently that "All in all, smoking has apparently brought financial gain to both the federal and state governments, especially when tobacco taxes are taken into account. In general, smokers do not appear to currently impose net financial costs on the rest of society."

Attorney General Janet Reno testified before the U.S. Senate in April 1997 that "the federal government does not have an independent cause of action" to sue tobacco companies. In other words, Reno said, if the government were to sue tobacco companies, it would have no legal leg to stand on. This is because the U.S. government itself has never smoked, and the law does not allow for one individual or entity to sue another for damage done to a third party. Two years later, of course, although the law has not changed, Reno herself announced the filing of such a lawsuit.

The lawsuit, in the words of a Department of Justice press release, was filed in part because tobacco companies allegedly "refrained from developing, testing and marketing potentially less hazardous products." Yet in the late 1970s, when tobacco companies were developing such products, the government made them stop.

The lawsuit assails tobacco companies for, as the Justice Department puts it, "failing to warn smokers about the effects of smoking." Yet it is common knowledge that cigarette packages carry frightening warning labels, and the government must think the labels are sufficiently dire, as the government wrote them.

The federal government subsidizes the sale of tobacco products on military post exchanges, making them less expensive and thus more likely to be bought. Yet the Justice Department lawsuit is partially filed under the terms of the Medical Care Recovery Act, which allows the government, under limited circumstances, to sue persons who harm servicemen.

Logically, if tobacco companies can properly be sued for selling tobacco to servicemen, wouldn't it be proper to sue the government for doing exactly the same thing?

Logically, yes. Legally, no.

You see, although the government waxes indignant about the sin of selling tobacco, it can't be sued for doing so itself unless it decides to let someone do so. Under the concept of "sovereign immunity," based on the ancient concept that "the king can do no wrong," the government can't be sued for selling tobacco, even if others can be.

So far, the government's moral outrage about tobacco sales and its conviction that the way to rectify this grievous wrong is by filing lawsuits doesn't extend to allowing anyone to sue the government.

It's a clear case of "do as I say, not what I do."

Perhaps the most hypocritical element of this lawsuit beset with contradictions is the fact that it was filed by this administration and this Justice Department.

The government's complaint cites the allegation that tobacco companies "made false promises" and "made false and misleading statements." HEL-LO. Since when does the cigar-chomping leader of this administration mind either of these things?

David A. Ridenour is Vice President of The National Center for Public Policy Research, a non-partisan think-tank in Washington, D.C., where he oversees its environmental and regulatory programs. Comments may be sent to DRidenour@nationalcenter.org.




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