Where There’s Smoke, There’s Money

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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 beresponsible formedical expenses and police overtime associated with gun violence. Themayor's plan called for dozens of cities to file suit on the same day. Gunmanufacturers "don't have the deep pockets of the tobacco industry," Rendellexplained, and multiple lawsuits "could bring them to the negotiating tablea lot sooner." Never mind that the suits are baseless. Extortionmasquerades as law so that Rendell and his co-conspirators can fatten theircities' coffers.

The mayor's next round of litigation will return to safer, moreremunerative turf: the deep-pocketed tobacco industry. This time it's notcancer but fires that cigarette makers cause. That's right; if someonefalls asleep with a lit cigarette, R.J. Reynolds is to blame. After all,Camels are loaded with chemicals that allow them to burn without constantpuffing. And when not snuffed out, cigarettes can smolder for a half houror more. Why couldn't the industry produce a fire-safe version?

Well, Reynolds did come out with its Premier brand, a cigarette thatheatedrather than burned. One smoker complained that it smelled "like burningtennis sneakers." Another thought he had "just opened a grave on a warmday." Over the years, notes George Mason University law professor MichaelKrauss, consumers who insisted on a fire-safe product had one readilyavailable: it's called chewing tobacco.

Meanwhile, tobacco companies have been among the most generoussupportersof fire departments and other organizations that educate smokers aboutfire-related risks. The response of anti-tobacco zealots to that generosityhas been pervasive skepticism about the selflessness of the industry'smotives. Tobacco companies are damned if they do and damned if they don't.

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

Evidently, none of that matters to Rendell and his gaggle oflike-mindedmayors. They intend to pursue through litigation what was rejected for goodand obvious reasons in each carefully crafted settlement and statute. Likethe gun suits, litigation to hold tobacco companies accountable for firedamages is simply an attempt to circumvent the legislative process --justified, say industry detractors, because the industry's political clouthas compromised too many lawmakers. That's a bizarre argument, however,when applied to an industry that was steamrolled into disgorging a quarterof a trillion dollars -- the same industry that in 1997 felt compelled towaive its First Amendment right to advertise, submit to Food and DrugAdministration regulation, even subsidize programs designed to convinceconsumers not to use its products.

If this nonsense ever gets to court, Rendell is unlikely to prevail.Since1985, when the first fire-safe cigarette case was dismissed, three othershave been sent packing -- none had sufficient merit to warrant a jury'sconsideration. Philadelphia's case is still weaker. While some firevictims are innocent bystanders, the government isn't. It could havelegislated fire-proof cigarettes or banned smoking, but it chose not to doso. More than any burn victim, the city assumed the well-known risk of aproduct that it authorized.

To put this problem in perspective, fires caused by cigarettes kill1,000people yearly in the United States. By comparison, 99,000 die fromalcohol-related injuries and 64,000 from other injuries. Of those 163,000deaths, about 41,000 arise out of auto accidents. Are brewers anddistillers next on the mayors' hit lists? How about car manufacturers?Indeed, what about motorcycles? Surely they could be made safer -- say byadding two more wheels and a steel shell. Oh yes, before we exhaustfire-related litigation, let's go after the makers of lighter fluid and gasgrills, even match manufacturers, who have the nerve to call their product"safety matches."

Robert A. Levy

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