This fall the United States Supreme Court will consider a case which has far-reaching implications for the future public health of the nation and the world.

Rose Cipollone started smoking cigarettes when she was 16 years old, smoking a pack and a half a day for almost 42 years. In 1981 she was diagnosed with lung cancer, dying from the disease in 1984. Mrs. Cipollone filed suit against the three companies that manufactured the cigarettes she smoked — Liggett (Chesterfield), Philip Morris (Virginia Slims) and Loews (True) — claiming that the companies marketed an unsafe product and caused her illness and death. This case has triggered a controversy on a very specific point of law, and the U.S. Supreme Court will be resolving this point, in effect deciding whether smokers have the option to mount effective lawsuits against cigarette companies.

Here I will attempt to define and clarify the specific point the Court will examine and explain why I believe, despite my deep concern about the insidious effects excessive litigation is now having on our society, a U.S. Supreme Court decision in favor of the estate of Rose Cipollone, followed by subsequent successful litigation which awards health damages to smokers who sue cigarette companies, will promote public health.

The Issue

Contrary to popular belief, the Supreme Court in addressing the Cipollone case is not deciding if Rose Cipollone's family should be financially compensated for the cigarette-induced suffering and death.

Instead the high Court will be answering this question: did the U.S. Congress in the 1960s convey a type of "Privileged Product Status" to the cigarette?

Specifically in 1965 and 1969 Congress passed laws which required that cigarette packages (and later advertising) carry government-approved warnings, and that "no statement relating to smoking and health (other than the federally mandated one) shall be required." In other words, the U.S. Congress dictated exactly what words of warning cigarettes would display. Thus the Congress, in legal terms, "pre-empted" the rights of states to make warning labels more specific or stronger.

(The cigarette industry was, ironically, enthusiastic about the federal warning label because, among other things, it shielded them from the inevitable interstate commerce chaos which would result if 50 states had 50 different warning labels).

But the cigarette companies now claim that Congress meant to do much more than just dictate the words of warning on the pack. The industry contends in court that Congress, in determining the nature of the warning, removed from the industry any obligation to further warn — and thus cloaked the industry with a veil of immunity from lawsuits.

By current standards, in the U.S. the burden for warning of potential or known product dangers lies with the manufacturer. If a company fails to warn about a known or suspected hazard, it remains vulnerable to litigation by consumers who demand legal redress in the form of monetary damages. Such liability is a very strong incentive for companies to either remove the hazard from their product or be very, very specific about that hazard so the consumer knows exactly what risks he or she is assuming.

So, in arguing that Congress pre-empted them from lawsuits, the cigarette companies are in effect saying, "Gee, we would like to tell you folks more about how dangerous cigarettes are, but the Government says we can't, and since our hands are tied by regulatory statutes, we 1) have no reason or incentive to bring to consumers' attention the dangers — and newly discovered hazards — of cigarettes and 2) should not be held liable for failure to thoroughly warn because we are legally prohibited from doing so."

With this "reasoning," cigarette companies have argued successfully in court that smokers should not be able to bring lawsuits against them. Many lower federal courts have concluded that Congress did mean to shield tobacco firms from litigation.

As a result, the manufacturers of the leading cause of death in this country have achieved the enviable status of being effectively immune from lawsuits. As attorney Larry White points out in his article in this issue of Priorities, the industry has never paid a cent in damages despite the fact that cigarettes are the cause of nearly half a million deaths annually in the U.S.

But in 1988 the New Jersey Supreme Court differed with other courts and declared that smokers like Rose Cipollone did have the legal right to sue and that Congress never intended to make cigarette manufacturers immune from lawsuits. This conflict between courts on the issue of whether cigarette smokers have the right to mount effective lawsuits is the issue which the U.S. Supreme Court will address and resolve in this session.

Is there any reason to believe that the Court would agree with the tobacco companies to the effect that they should be given a special immune status? It is unlikely. It would seem difficult to believe that the Court would in effect argue that Congress in the mid and late 1960s intended essentially to freeze the state of all communication about the hazards of smoking so that cigarette manufacturers would have no incentive to alert smokers and would-be-smokers about the newly documented hazards as they became known.

Indeed, in the past 25 years there has been an enormous accumulation of new information about the dangers of smoking. Before 1969, there was a major (and justified) concern about the elevated risks of lung cancer among smokers. Since then, however, cigarette smoking has been shown to increase dramatically the risk of cancer of the bladder, pancreas, esophagus, cervix, play a major role in chronic obstructive lung diseases — and has been causally linked with ailments as wide ranging as male impotence and premature wrinkling of skin. Any other manufacturer would feel obligated to warn consumers of the growing list of hazards — or face litigation — but for the cigarette industry it was simply business-as-usual.

There are those who argue that a Supreme Court ruling allowing consumers to sue cigarette companies would overwhelm the court system, already severely burdened by an explosion of litigation. Surely excessive litigation and the associated financial awards are a menace to our society with reform sorely needed.

But the remedy for the litigation crisis we now face is not to declare one industry effectively immune. Instead, treat the cigarette companies like other defendants. Then move to reform the tort system across the board.

Should Smokers Be Rewarded by Courts for their Stupidity in Smoking?

Successful cigarette litigation will require a two-step process. First the Supreme Court would need to reject the cigarette manufacturers' claim of immunity from lawsuits and allow cases like that of Rose Cipollone to go before a jury. Second, and even more complex, will be the question before juries as to whether cigarette smokers were sufficiently warned as to the dangers of their habit, whether smokers should assume full responsibility for the effects of smoking or whether they should be awarded damages by an industry which knowingly sold a product which caused illness and death, without issuing sufficient warning.

Inevitably many jurors will find themselves asking the question, "Why should we financially reward the family of a woman stupid enough to smoke for four decades?"

Prior to the warning label requirement in 1966, smokers received no official warning. But even now the following factors make the current warning labels inadequate. In my opinion, inadequate warning should be grounds for holding cigarette manufacturers liable for the disease and death wrought by their product:

* Cigarettes are highly addictive. This fact is not officially conveyed to smokers and potential smokers by the manufacturer.
* The federally mandated warning is unspecific and incomplete in providing smokers with data sufficient to make an informed decision.
* Cigarette manufacturers have never admitted that their product is hazardous to health. Indeed for decades, they have been playing both sides of the field stating that no hazards have been proven, but that consumers are duly warned about the hazards which don't exist!
* Manufacturers spend over $3.5 billion in advertising to counteract the limp warning on cigarette packages. At best, smokers get a mixed message and, as Rose Cipollone pointed out in her testimony, there is a prevailing belief that if a product is legal and advertised it just couldn't be that bad.
* This extraordinary advertising expenditure buys considerable editorial clout. There has never been a major story about the dangers of smoking in any magazine which accepts cigarette advertising.

There are those who argue that cigarette companies should be held liable for cigarette-induced health damage no matter the extent of their attempts to warn.

But I disagree. In a free society individuals should be held responsible for their own behavior. If indeed there comes a point where tobacco companies do provide consumers with a full, unexpurgated description of the hazards of smoking, and cigarette advertising is eliminated or tempered to remove the message that smoking is associated with vitality, health and the good life, then smokers should blame no one but themselves for the devastating effects of cigarette-induced disease.

If for example, cigarette companies included a full package insert graphically discussing the consequences of smoking in each pack, issued regular bulletins on the latest findings in the field of cigarettes and disease, and ceased and desisted in chilling the free discussion of the hazards of cigarettes in the media, then we would begin to approach a state of adequate warning. In this scenario, when the Journal of Urology this spring reported the conclusive findings of studies indicating that cigarette smoking was a leading cause of impotence in young males, millions of American men who smoke would be notified of this finding, perhaps in an official publication of the industry along the line of "tobacco's impact on your health." Certainly such an industry bulletin would also offer tips on smoking cessation — to underscore its contention that cigarette smoking is, after all, "voluntary."

But we are a long way, indeed, from this full disclosure by the industry. Instead, the disinformation campaign to distract smokers from the dangers of smoking is at full intensity. Tobacco companies do everything in their power to undercut the impact of the warning label by associating smoking with tennis tournaments, the Bill of Rights, arts and cultural events. They advertise in movies, magazines and newspapers, on billboards, grocery shopping carts, the tops of taxicabs and anywhere else they can. Thus, while the "failure to warn" mode of liability is still in place, cigarette companies should be held to the same standards as any other U.S. company marketing a dangerous or potentially dangerous product without sufficient warning.

A Supreme Court decision recognizing the right of smokers to sue cigarette manufacturers will have a variety of sequelae, nearly all of which will contribute to a reduction of smoking in this country and perhaps around the world.

First, successful litigation will pass on the costs of smoking where they belong: onto the cigarette industry and onto smokers, instead of onto society as a whole. This cost transfer will contribute considerably to the price of cigarettes. This will reduce smoking because price is a very sensitive variable in predicting whether young people start smoking.

This transfer of costs is not "economic nannyism," rather it correctly places responsibility in a society which believes people should pay their own way.

Second, the enormous publicity given to such litigation, and the "discovery" elements of the trials will be an eye opener to smokers and non-smokers alike. It will raise the level of awareness about the devious tactics used by the industry to hide the disease and devastation caused by cigarettes under a "smoke screen."

Third, litigation will give a substantial incentive to the industry to warn smokers of the health dangers, not just on labels but in regular tobacco bulletins and package inserts. With the spigots of information on the dangers of smoking open full blast, fewer and fewer people will choose this self-destructive habit — leaving those who still "choose" to do so, to keep puffing but at their own expense and without hope of successful litigation when they become ill.

(From Priorities Vol. 3, No. 4, 1991)