WASHINGTON, February 4, 2018: Lawsuits assailing the well-known dangers of smoking have a long history. As one result, the negative consequences for the tobacco industry will never end. Before reviewing a short history of the legal journey against tobacco companies, however, an understanding of tobacco’s negatives is in order.
Smoking and health issues
Smoking ranks among the dumbest things you can do if you really care about your health. To be a productive member of society today also means you have heard and seen all the health warnings on tobacco consumption, including warnings from every doctor, every scientist, and most importantly, from the cigarette companies themselves.
From the Centers For Disease Control:
“Cigarette smoking harms nearly every organ in the body, causes many diseases, and can kill the smoker years before that person would have otherwise passed.”
Cigarette smoking is the leading cause of preventable death in the United States.
More than ten times as many citizens have died prematurely from smoking than have died in all of the wars fought by the U.S. Estimates suggest that by the 2020s, there will be over 2 million lung cancer deaths alone per year, with the vast majority of those being attributable to smoking. When all smoking-related health maladies are considered, the number jumps to 6 million deaths per year. That equates to about one death every five seconds in this country.
Smoking causes about 90 percent of all lung cancer deaths, and more women are now dying from lung cancer each year than from breast cancer.
Smoking increases the risk of tooth and gum decay, tooth loss, cataracts, age-related macular degeneration(AMD), type 2 diabetes mellitus, rheumatoid arthritis, chronic obstructive pulmonary disease (COPD), coronary heart disease and stroke. Smoking can also cause cancer in the bladder, blood, cervix, colon and rectum, esophagus, kidney, larynx, liver, pancreas, stomach, trachea, bones, bronchus and lungs.
For pregnant women, smoking increases the risks of preterm delivery, stillbirth, child low birth weight, sudden infant death syndrome, ectopic pregnancy, facial clefts, miscarriage and other child birth defects.
For men, among causing other health problems, smoking adversely affects sperm and sperm production.
Worse: This list is not exhaustive.
Tobacco Companies were and still are bad guys
There was a global lung cancer epidemic in the early 1900s. Cigarettes were eventually recognized as the cause by the 1950s, after a steady accumulation of studies, animal experiments and chemical analytics pointing in that direction.
The tobacco industry was aware of this developing body of knowledge. Yet the industry continuously spent ridiculous amounts of money supporting advertising and campaigns to deny and distract the public from learning more about the cigarette-cancer link.
Finally, armed with the growing body of scientific evidence confirming the danger of smoking, lawsuits aplenty were filed in courts across the country, seeking to obtain redress for wrongs and harms being wrought by tobacco on the smoking and non-smoking public alike. Smokers, their families and the government have now been filing lawsuits against the industry for more than fifty years.
Legal theories cited to support these lawsuits have included negligent manufacture, product liability, negligent advertising, fraud and violation of state consumer protection laws.
Like any child caught assaulting the cookie jar, tobacco companies fought back against the growing avalanche of legal actions. They initially argued that tobacco was not harmful, that smokers’ cancers were caused by other factors and that smokers had already assumed the potential risk of cancer when they decided to smoke in the first place. In most of the early cases against the industry, the tobacco companies won.
Aha! Assumption of the risk! In their zealousness to defend themselves, the tobacco companies introduced this key concept that left them open to the next round of lawsuits.
Companies: You are responsible for what happens to you if you smoke.
Smoker: But what if I’m addicted?
Smoker: You sold me something you knew was bad for me, and it was addictive, and I can’t stop.
Lawsuits focusing on an addiction to smoking
Private actions were forced to confront that “assumption of the risk” problem until a landmark Supreme Court case, Cipollone v. Liggett, was decided in 1992. The Court held that the Surgeon General’s warning appearing on each pack of cigarettes did not preclude individuals from suing the tobacco companies. Rose Cipollone’s husband then filed suit, claiming that the cigarette manufacturers knew but did not warn consumers that smoking caused lung cancer and that cigarettes were addictive.
By the mid- to late-1990s. smokers and their families finally started winning lawsuits and damages against the cigarette manufacturers, primarily due to the 1992 Supreme Court decision. In these cases, internal corporate documents were leaked and used in courtrooms, showing that the companies involved had long been well aware of the addictive nature of tobacco.
The first “big” win for a plaintiff occurred in California in 2000, when Philip Morris (now split into Altria and Philip Morris International) was ordered to pay $51.5 million to a smoker who developed inoperable lung cancer.
Tobacco lawsuits filed by states
State government actions against the tobacco industry were not about individual claims, but about recovering health care costs and stopping fraudulent advertising that supported tobacco products and smoking. Hence, no “assumption of the risk” defenses were involved.
Leading up to 1998, more than 40 states filed lawsuits against cigarette companies under state consumer protection and antitrust laws. They argued that smoking contributed to health problems that required states to pay for significant additional healthcare costs.
By 1998, the attorneys general of 46 states and four of the largest tobacco companies agreed to settle the state cases. In what was called the Master Settlement Agreement (MSA), the companies were required to refrain from engaging in certain advertising practices, particularly those targeting children. Additionally, the settling companies had to pay out annual sums of money to the states to compensate them for added smoking-related health-care costs, over $206 billion for the first 25 years. The terms of the MSA also require annual payments to the states to continue forever.
The MSA also resulted in the creation and funding of the National Public Education Foundation, which was dedicated to reducing youth smoking nationwide.
After the Master Settlement Agreement was reached, an article appeared in the Journal of the National Cancer Institute citing their researchers’ views that not enough MSA money was being spent on anti-smoking measures, noting “The MSA was an opportunity lost to curb cigarette use.”
Robert Levy, of the Cato Institute, on the MSA:
“The states extorted a quarter-trillion-dollar settlement that was passed along to consumers in higher cigarette prices.”
Action and lawsuit filed by the Federal government
Recognizing the growing scientific proof of the negative health effects of smoking, in 1970 Congress passed the Public Health Cigarette Smoking Act, which banned cigarette ads on television and radio. The last cigarette commercial on TV was a Virginia Slims ad that aired at 11:59 p.m. on December 31, 1970 on The Tonight Show.
The next action of major significance by the Federal government was to follow the states’ lawsuits against big tobacco. In 1999 a Federal lawsuit was filed alleging fraudulent and unlawful conduct. That suit sought reimbursement of tobacco-related medical expenses paid out by the U.S. government. Among the government’s claims:
- Mislead the public about smoking risks
- Mislead the public about second-hand smoking risks
- Misrepresented the addictiveness of nicotine
- Manipulated the nicotine delivery of cigarettes
- Deceptively marketed cigarettes as “light” or “low tar” knowing these were equally hazardous as full flavored cigarettes
- Targeted the youth market, and
- Failed to produce safer cigarettes
In August, 2017, the judge hearing this case issued a 1,683 page opinion holding the tobacco companies liable:
“As set forth in these Final Proposed Findings of Fact, substantial evidence establishes that Defendants have engaged in and executed – and continue to engage in and execute – a massive 50-year scheme to defraud the public, including consumers of cigarettes…”
Tobacco lawsuits filed by individuals
Individuals also banded together to file class action lawsuits against the cigarette makers. But a 2006 Florida Supreme Court case disrupted that class-action plan. In their ruling, the court found that “tobacco companies knew they were selling dangerous products and were keeping smoking risks concealed.” But the Court said the case could not go forward as a class, declaing that each case must be proven individually.
In a 2014 wrongful death lawsuit against RJ Reynolds, a jury awarded more than $23 billion in punitive damages to a widow for her husband’s smoking related death. The next year a Florida appeals court reduced the award to under $17 million.
Product liability and wrongful death claims continue to be filed against the tobacco companies.
No amount of money to a smoker, or to his or her survivors, is worth developing the smoking habit. For those addicted, every effort should be made to stop smoking, to get help and to heal.
A second priority, after better health, is the possibility of a lawsuit.
From the Center for Disease Control (CDC):
- Quitting smoking cuts cardiovascular risks: just one year after quitting your risk for heart attack drops sharply.
- Within 2-5 years after quitting your risk for stroke reduces to that of a non-smoker
- Within 2-5 years, risks for cancers of the mouth, throat, esophagus and bladder drop to half
- Ten years after quitting your risk for lung cancer drops by half.
Clearly, for every parent alive, among the key things that children MUST be taught today is this: DO NOT SMOKE.
CURRENT SURGEON GENERAL’S WARNINGS on cigarette packs:
Smoking Causes Lung Cancer, Heart Disease, Emphysema, and May Complicate Pregnancy.
Quitting Smoking Now Greatly Reduces Serious Risks to Your Health.
Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980. He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 703-761-4343, via email, or through his website.
His book “The 8 Critical Things Your Auto Accident Attorney Won’t Tell You” can be instantly downloaded, for free, on his website: http://www.samakowlaw.com/book.
Samakow has now also started a small business consulting firm. The website for this business is brand new and Mr. Samakow will be most appreciative of any and all comments. www.thebusinessanswer.com.