Tobacco

TOBACCO COMPANY LAWSUITS:
A TWO EDGED SWORD

Before reading through this discussion please bear in mind two items: first, I don't own any stock in the tobacco companies or have any reason to
see them succeed, and second, as much as anyone else, I would like to see the world rid of tobacco products. However, my personal feelings for
the tobacco industry as a whole don't change the level of concern that every citizen in the United States should have for the mistakes that have been
made by the courts systems in these cases.

Discussion:

Hindsight is 20/20. Starting with a pearl of wisdom should lend a level of credibility to comments that may spark either positive or negative interest. I believe that 'we' don't spend enough time looking back, evaluating past decisions based on the premise of "Knowing what I know now..."

Overall, the court system has let the American public down again by allowing the civil suits against the tobacco companies to proceed to conclusion. The civil cases I refer to are those brought by individuals and the various state and federal governing bodies. These cases should have been dismissed early in the proceedings for three primary reasons:
     1. In the case of the individual, the basic personal liberty provided by the Constitution allows each person to make decisions without governmental review, however this right also bears a responsibility of accepting the consequences of those decisions.
     2. In both cases, the decision by the courts that the tobacco companies were responsible for selling products that harmful was inaccurate based on the findings of the governmental organization designed to provide these evaluations.
     3. In the case of the various governmental organizations, suing for funds after the fact is a basic violation of the "grandfather" concepts that apply to every business and person under the law.

The basic reason these cases should have been or overturned is that verdicts in favor of the plaintiff have engraved in stone changes to the legal system that will haunt every aspect of the American way of life, let me explain.

Reason #1:
The rulings against the tobacco companies have placed in jeopardy the most basic of the American liberties: personal choice. The effect of the ruling is that the responsibility for choice and actions has been shifted from the individual. The long-term effect of this shift is the gradual need for government intervention in every decision made on a daily basis to provide companies with protection from trial lawyers. It's not matter of whether or not a product was sold that was harmful, the matter at hand is whether or not the information was withheld from the individual making the choice. The rulings charge that the tobacco companies knew that the products were harmful and addictive and went so far as to claim the opposite and develop enhancements to the product to make it even more addictive. The primary consideration here is that none of that matters. The individual making the decision had been informed by the government and notified on EVERY pack of cigarettes for the last 40 years that smoking was dangerous to your health. That same individual chooses to ignore the warnings and continued with the consumption of the product. That is the basic right of the individual and should not be subject to governmental oversight.

Here's the reason this decision is so damaging. Every company that sells any product is aware of the potential dangers inherent in their product and will downplay those dangers in order to sell the product. The consumer is expected to evaluate those products and dangers and make a decision based on the desires of the individual. An example may help. Lay's Potato Chips are known to cause weight problems, possibly coronary problems and nutritional problems if consumed in excess. This conclusion is based on the nutritional information printed on the bag. Although I don't have copies of internal smoking gun memos, I have no doubt that Lay's has performed a number of tests to identify the potential damaging effects of potato chip consumption. Will this information be displayed in advertisements along with the slender and fun loving people consuming the product? Probably not. Lay's goes so far as to advertise the additive nature of the product with a slogan of "Nobody can eat just one." How much more evidence do we need that Lay's is guilty in the same way? Now take this same concept to every company that sells any consumable product. Already there have been suits filed against McDonalds by someone obese because this person thought that 100% beef was quality nutrition.

Conclusion: Let people make their own decisions and then hold them responsible for the consequences. The government should undertake civil suits when standard information is misleading or inaccurate. Internal company information is internal for a reason and is not a basis for the stupid decisions of the individuals. Yes, I know that cigarettes are claimed to be addictive, however, recognizing that the option for not stopping is death, the individual still needs to have the right to make the decision.

Reason #2:
The Congress, which the legislative body elected by the people, implemented a governmental agency to oversee the various consumable products available to the general population. These products are classified according the potential for danger that these products represent. This is the agency that determines if a new drug can be sold generally in the United States, sold under a prescription or not sold at all. This agency is generally referred to as the FDA or Food and Drug Administration. This agency was developed under the mandates set forth by Congress. This agency has organized the various scientific resources needed to properly evaluate the products offered for sale. This agency, whether right or wrong, determined that tobacco did not pose a threat beyond the warnings placed on the product itself, providing the legal basis for the sale of the product. With this classification in place, all of the internal memos in the world have no bearing since the product has not been classified as dangerous. Now for the sticky part, a judge in a courtroom took it upon himself to override the decisions of an agency that was established by the representatives of the people. He decided that tobacco was dangerous beyond the warnings; he decided that the decisions of the FDA didn't apply. And that is the problem. Instead of accepting the decisions of the FDA or calling the FDA to task, he made threw out the will of the people.

Here's the reason this is so damaging. This same attitude is showing up across all of the agencies established by governing bodies. The prime example is a zoning commission. Here is a commission with the legal right to determine the ability of anyone to build anywhere. Once the commission makes a decision, then the ability to challenge that decision lies with the commission and not the owner of the property. However, judges won't throw out suits against people with valid zonings, forcing the suits to be fought in the commission, the judge requires that the owner provide for the defense himself, even though the owner is within his legal right.

Conclusion: The court system must begin a process of placing the challenge where the challenge lies and stop trying to make decisions that are outside of the scope of authority. The court can require that the process be repeated, however, the court does not have the right to overturn the decisions of governmental agencies that are fulfilling the mandate established with the creation of the agency. Who can protect the public against the court?

Reason #3:
Of the three reasons, this one is the most aggravating for me. Governments at all levels decided to jump on the bandwagon when the floodgate opened. The reason this is wrong is that government has always had the authority to implement a tax structure to raise the revenues needed and have failed to do so. Governments have had access to the same research and projected effects of tobacco as the FDA and failed to perceive that there was a potential problem in the works and establish a reserve for it.

Here's the reason that this is so damaging. How many other problems / issues are waiting in the wings for someone to point the finger. If a governmental agency failed to properly perform the role of overseeing, how can they be trusted to oversee from today forward? Arizona recently approved a tax hike on tobacco products, is the money going into a trust fund to pay for those illnesses that are the result of tobacco? Did any state take the money received from the tobacco settlement and establish how this money would be used for the sick people that smoked? No is the answer in both cases, everyone sees the money as a bonus and let tomorrow worry about the cases coming up.

Conclusion: I'm not sure that much more can be said about the failing of government to: 1) protect in advance, 2) prepare in advance, or 3) plan for tomorrow.

Thank you.