Commentary

Where There’s Smoke, There’s Money

Philadelphia Mayor Edward G. Rendell announced today that the city will seek to recover damages from construction firms that built the bridges from which a number of persons have plunged in unsuccessful suicide attempts. When asked why those firms should have to pay, Rendell volunteered, “They should have installed safety nets.” Just kidding, you say? To be sure. But looking ahead, Rendell and a cadre of mayors across the nation are careening down a slippery slope — aiming lower with each passing lawsuit.

Some months ago, Rendell decided that gun makers should be responsible for medical expenses and police overtime associated with gun violence. The mayor’s plan called for dozens of cities to file suit on the same day. Gun manufacturers “don’t have the deep pockets of the tobacco industry,” Rendell explained, and multiple lawsuits “could bring them to the negotiating table a lot sooner.” Never mind that the suits are baseless. Extortion masquerades as law so that Rendell and his co-conspirators can fatten their cities’ coffers.

The mayor’s next round of litigation will return to safer, more remunerative turf: the deep-pocketed tobacco industry. 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. And when not snuffed out, cigarettes can smolder for a half hour or more. Why couldn’t the industry produce a fire-safe version?

Well, 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, notes George Mason University law professor Michael Krauss, consumers who insisted on a fire-safe product had one readily available: it’s called chewing tobacco.

Meanwhile, tobacco companies have been among the most generous supporters of fire departments and other organizations that educate smokers about fire-related risks. The response of anti-tobacco zealots to that generosity has been pervasive skepticism about the selflessness of the industry’s motives. Tobacco companies are damned if they do and damned if they don’t.

On the legislative front, in 1997 the industry agreed to a global settlement of state Medicaid claims, which Congress never approved — preferring instead the McCain bill, which died of its own weight. Then came a massive $206 billion settlement with 46 states, supplementing nearly $40 billion previously negotiated by Florida, Mississippi, Texas and Minnesota. Nowhere in all the contractual and statutory provisions was there any attempt to mandate a fire-safe cigarette. Members of Congress and all 50 states, hooked on their huge share of tobacco revenues, recognized that such a requirement would effectively ban cigarettes.

Evidently, none of that matters to Rendell and his gaggle of like-minded mayors. They intend to pursue through litigation what was rejected for good and obvious reasons in each carefully crafted settlement and statute. Like the gun suits, litigation to hold tobacco companies accountable for fire damages is simply an attempt to circumvent the legislative process — justified, say industry detractors, because the industry’s political clout has compromised too many lawmakers. That’s a bizarre argument, however, when applied to an industry that was steamrolled into disgorging a quarter of a trillion dollars — the same industry that in 1997 felt compelled to waive its First Amendment right to advertise, submit to Food and Drug Administration regulation, even subsidize programs designed to convince consumers not to use its products.

If this nonsense ever gets to court, Rendell is unlikely to prevail. Since 1985, when the first fire-safe cigarette case was dismissed, three others have been sent packing — none had sufficient merit to warrant a jury’s consideration. Philadelphia’s case is still weaker. While some fire victims are innocent bystanders, the government isn’t. It could have legislated fire-proof cigarettes or banned smoking, but it chose not to do so. More than any burn victim, the city assumed the well-known risk of a product that it authorized.

To put this problem in perspective, fires caused by cigarettes kill 1,000 people yearly in the United States. By comparison, 99,000 die from alcohol-related injuries and 64,000 from other injuries. Of those 163,000 deaths, about 41,000 arise out of auto accidents. Are brewers and distillers next on the mayors’ hit lists? How about car manufacturers? Indeed, what about motorcycles? Surely they could be made safer — say by adding two more wheels and a steel shell. Oh yes, before we exhaust fire-related litigation, let’s go after the makers of lighter fluid and gas grills, even match manufacturers, who have the nerve to call their product “safety matches.”

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