Last June, you will recall, a coterie of state attorneys general, joined by plaintiffs’ lawyers and public‐health advocates, announced a sweeping “resolution” of state Medicaid suits. The tobacco industry agreed to disgorge $370 billion in monetary damages over 25 years, pay additional penalties if specified reductions in smoking by teenagers didn’t occur, submit to Food and Drug Administration regulation, cease all vending‐machine sales, and rein in certain marketing practices allegedly targeted at children. In return, the tobacco companies were to be immunized from punitive damages for their past conduct and from new class‐action lawsuits. Individuals could still sue, but subject to a $5‐billion annual cap on compensatory damages.
Now the McCain bill brings the hoot of government down even harder on the industry’s neck. Like the agreement reached last summer, the new bill would expand FDA control, sharply curtail advertising, and ban vending‐machine sales. But instead of $370 billion, it would extort from $500 to $600 billion from the industry (estimates vary), raise the cap on compensatory damages from $5 billion to $6.5 billion per year, and increase potential penalties if the reduction in teen smoking doesn’t meet established goals. Most important, Sen. McCain refuses to offer the quid pro quo that the industry most covets: immunity from punitive damages and future class‐action lawsuits.
This final provision on immunity is commendable. If a smoker is injured, our tort system permits him to seek recovery from those who caused the injury. Yes, legislatures can alter the rules at the margin (e.g., they can permit or eliminate punitive damages), but they cannot cut into the irreducible core of our due‐process right. When a plaintiff is prevented from suing as a member of a class, when compensatory damages are subject to an upper limit, when those constraints minimize his chances of attracting skilled legal assistance to confront a well‐financed and competently represented defendant, then that right has been fundamentally compromised. The McCain bill preserves that right.
Bui the rest of the bill is awful. Foremost, there’s the neglected matter of free speech. The McCain bill is an outrageous violation of the industry’s First Amendment right to advertise a legal product. It would ban outdoor and Internet ads, characters like the Marlboro Man and Joe Camel, tobacco logos on non‐tobacco merchandise, sponsorship of sporting events, even color ads on the back covers of adult magazines; and it would restrict the placement, color, and size of point‐of‐sale displays.
It doesn’t take a constitutional scholar to realize that the proposed rules are ridiculous. We treat flag burning and Ku Klux Klan orations as protected speech; we even insulate “gangsta rap” from the censors. But if Tiger Woods shows up wearing a jacket emblazoned with a Joe Camel emblem, our new speech guardians will hold the executives of R. J. Reynolds accountable.