Commentary

Fired-Up About Safe Cigarettes

Copyright National Review, Inc. This essay was reprinted by permission and was published May 30, 2000 on National Review Online.
Just when you think the politicians have wasted their time and our money on every harebrained scheme imaginable, New York lawmakers prove that they haven’t yet plumbed their potential for legislative foolishness.

Both the assembly and senate unanimously approved a bill that would force tobacco companies to make fire-safe cigarettes within two years or risk having their product banned from the nation’s sixth largest market. The goal is to prevent smoldering butts from igniting a larger blaze.

Gov. George E. Pataki had the good sense to veto the bill on May 24. But his press conference suggests that the issue is far from dead. “The principle of New York taking the lead to make sure we have fire-safe cigarettes, I wholeheartedly support,” he declared. If legislators will “sit down with our staff, work out [a few] details, and send the bill back … I will sign it into law.” Those “details” include fines for retailers who violate the law, stiffer penalties for bootlegging, a ban on Internet sales, and 6 months rather than 30 days for tobacco companies to comply. The bill’s sponsors quickly proclaimed that they had no objections to the governor’s conditions and were already preparing new legislation.

So this time it’s not cancer but fires that cigarette makers cause. That’s right: If someone falls asleep with a lit cigarette, R.J. Reynolds is to blame. After all, Camels are loaded with chemicals that allow them to burn without constant puffing. When not snuffed out, cigarettes can smolder for a half hour or more. Why shouldn’t the industry produce a fire-safe version?

Reynolds did come out with its Premier brand, a cigarette that heated rather than burned. One smoker complained that it smelled “like burning tennis sneakers.” Another thought he had “just opened a grave on a warm day.” Over the years, consumers insisting on a fire-safe product had one readily available: chewing tobacco.

Nationally, the industry agreed in 1998 to a massive settlement of state Medicaid claims, hammered out after protracted negotiations with state attorneys general, trial lawyers, the Clinton administration, and the health community. Nowhere in all the contractual provisions was there any attempt to mandate a fire-safe cigarette. Federal and state officials, hooked on their huge share of tobacco revenues, recognized that such a requirement would effectively ban cigarettes and turn off the money faucet.

None of that apparently matters to Senate Majority Leader Joseph Bruno and his gaggle of like-minded legislators — soon to be joined, so it seems, by Gov. Pataki. “This bill will help end the carnage here in New York state,” Bruno crowed. What carnage? CNN reports 28 fire-related deaths were traceable to cigarettes in New York state last year. But according to recent figures from the state’s Bureau of Injury Prevention, 246 people died from poisoning, 165 from suffocation, 147 from submersion, and 50 from bicycling.

To put the problem in broader perspective, fires caused by cigarettes kill about 1,000 people yearly across the United States. By comparison, 163,000 die from other injuries, of which 99,000 are alcohol-related and 41,000 are auto-related. Are brewers and car makers next on legislatures’ hit lists? What about motorcycles? Surely they could be made safer by adding two more wheels and a steel shell. And before we exhaust fire-related legislation, let’s go after the makers of lighter fluid, gas grills, and match manufacturers, who have the nerve to call their product “safety matches.”

Meanwhile, Philip Morris, struggling mightily to burnish its stained public image, manages a feeble protest — announcing only that it would favor a single safety standard for the nation. There you have it: the leading tobacco company cowed into submission by the reality of extortionate state settlements and the lingering prospect of runaway juries in private litigation. Neither the industry nor the state legislature has thought seriously about this issue. Nor has Gov. George Pataki, whose veto will vanish if the bill is modestly reworked.

Although the legislation would be the first of its kind, the outcome is entirely foreseeable. Already, recounts the Washington Post, “cigarettes by the truckload are being smuggled from Virginia, where the cigarette tax is 2.5¢ per pack, the nation’s lowest, [to] New York,” where the tax is $1.19, the nation’s highest. A van containing 4,500 cartons can rake in more than $50,000 profit from each trip. That’s about $7 million a year for just 3 trips a week. Couple that with fire-safe New York cigarettes that taste like rolled tree bark.

You don’t have to be a state legislator to know that this bill is quite simply ridiculous: It will inevitably foment illegal dealings dominated by criminal gangs hooking underage smokers on an adulterated product freed of all constraints on quality that competitive markets normally afford. Gov. Pataki, take note. No deals with the legislature.

Robert A. Levy is senior fellow in constitutional studies at the Cato Institute.