The barrier to entry erected by the MSA came in the form of escrow payments for “damages” imposed on cigarette makers that had not been sued by the states, were not a party to the MSA and, in some cases, didn’t even exist when the MSA was signed.
How then, in the Journals words, could “upstart cigarette makers have swarmed into the market [and] grabbed nearly four percent … up from just one percent in 1997”? Sorry, but that’s the wrong question. Assuming the Journal has its numbers correct, “wholesale list prices, excluding taxes, have risen nearly 80%”; new and small companies are selling “cut-rate smokes … for as little as $1 a pack, compared with an average retail price of more than $3 for big-name brands”; “companies that haven’t signed the agreement aren’t bound by its marketing restrictions”; and “it really doesn’t take a lot of capital to start a cigarette company.” Accordingly, if not for the entry barriers created by the MSA, how in the world could four tobacco giants still control 96 percent of that market?
To be sure, the financial incentives are so large that the attorneys general and their hired gun lawyers may have underestimated the extent to which entrepreneurs would try to enter the tobacco business. As a result, the impressive dike that the MSA erected may have sprung a few leaks. First, the four states that settled prior to the MSA don’t require non-signing tobacco companies to pay damages into escrow. Those states - Florida, Mississippi, Texas, and Minnesota - account for 15 percent of U.S. sales. Don’t be surprised if they ultimately enact an escrow requirement to protect their cash cow if the small companies get too sassy.
Second, escrow payments are based on all sales within a state. Therefore, cigarettes wholesaled in, say, Texas (where there is no escrow) but retailed in, say, New Jersey (which requires an escrow) are supposedly covered. Still, some new cigarette makers are refusing to pay up. They say they’re not accountable when distributors transport cigarettes for resale out of state without the manufacturer’s knowledge or permission. That issue is certain to be litigated.
Third, under the MSA, the majors pay less to the states if their aggregate market share declines by more than two percentage points. The decline since 1997, three percentage points, is only one point above the threshold - probably not enough to worry the cartel. Yes, the states lost $190 million in 1999 because of lower settlement payments. But that’s not even 3% of the roughly $7 billion in 1999 payments. Perhaps that explains why some states aren’t vigorously enforcing their escrow provisions. The pressure to enforce will increase if payments to the states decline further. Interestingly, preliminary data for the year 2000 indicate no comparable reduction.
Finally, one of the majors, Brown & Williamson, has tried to circumvent the MSA by forming an alliance with the largest non-signer, Star Scientific. That too will be litigated if it endangers the long-run future of the cartel.
In short, the attorneys general and their billionaire lawyers cooked up a sweetheart deal with the tobacco giants. Everyone came out ahead, except for smaller companies and of course smokers, who get socked with the entire cost of the anti-competitive scheme. The Journal’s article offers some small hope that the cartel might ultimately be destabilized. But the truly astonishing story is how cleverly the parties to the MSA anticipated virtually everything that has transpired. Without relief from the courts, the MSA will keep the tobacco cartel alive and well. It’s no accident that the biggest tobacco companies, despite settlement obligations in excess of $200 billion, are registering higher sales, fatter profits, and loftier stock prices.