MIAMI — A jury in northwestern Florida awarded a staggering $23
billion judgment late Friday against the country’s second-largest tobacco
company for causing the death of a chain smoker who died of lung cancer at the
age of 36.
The company, the R. J. Reynolds Tobacco Company, promised a prompt appeal.
Michael Johnson Sr. died in 1996 after smoking for more than 20 years. In 2006,
his widow, Cynthia Robinson, of Pensacola, sued R. J. Reynolds the maker of the
Kool brand cigarettes her husband had smoked, arguing that the company had
deliberately concealed the health hazards its product caused.
The four-week trial ended Wednesday. The jury deliberated for 18 hours over two
days, first awarding $17 million in compensatory damages and then emerging at 10
p.m. Friday with a $23.6 billion punitive judgment.
“When they first read the verdict, I know I heard ‘million,’ and I got so
excited,” Ms. Robinson said in a phone interview Saturday. “Then the attorney
informed me that was a ‘B’ — billion. It was just unbelievable.”
She said Mr. Johnson, a longshoreman and hotel shuttle bus driver to whom she
was married from 1990 until his death six years later, began smoking around age
13. He often lit a fresh cigarette with the butt end of another.
“He really did smoke a lot,” she said.
He had two children, who are now 23 and 29.
“The damages awarded in this case are grossly excessive and impermissible under
state and constitutional law,” J. Jeffery Raborn, vice president and assistant
general counsel for R. J. Reynolds, said Saturday in a statement. “This verdict
goes far beyond the realm of reasonableness and fairness and is completely
inconsistent with the evidence presented. We plan to file post-trial motions
with the trial court promptly and are confident that the court will follow the
law and not allow this runaway verdict to stand.”
Such efforts by the industry are often successful. In October 2002, a Los
Angeles jury awarded $28 billion in punitive damages against Philip Morris USA.
In August 2011, an appeals court reduced the punitive damages to $28 million.
The Florida case was among the thousands of the so-called “Engle progeny” cases
that stemmed from a 2006 court decision ruling that smokers could not file
class-action suits but were free to do so individually.
That decision reversed a $145 billion verdict in a class action awarded in 2000
on behalf of a Miami Beach pediatrician, Howard A. Engle. An appeals court
voided the award, saying it was excessive and the cases of individual smokers
were too disparate to be considered as a class.
The plaintiffs petitioned the Florida Supreme Court, which upheld the
decertification of the class but permitted individuals to sue, which set the
stage for Ms. Robinson’s lawsuit.
Friday’s verdict was the highest granted to an Engle progeny case.
Ms. Robinson was represented by Christopher M. Chestnut, based in Georgia, and
Willie E. Gary and Howard M. Acosta, both based in Florida.
“The jury just got it,” Mr. Chestnut said. “The jury was outraged with the
concealment and the conspiracy to conceal that smoking was not only addictive
but that there were deadly chemicals in cigarettes.”
He said the jury seemed most persuaded by 1994 C-Span footage of tobacco
industry executives claiming smoking did not cause cancer and was not addictive,
and by 60-year-old internal documents showing the company knew otherwise.
Scott P. Schlesinger, a Fort Lauderdale, Fla., lawyer who has sued big tobacco
but was not involved in the Robinson case, said a verdict this large is not
typical.
“There have not been multibillion-dollar punishments in the Engle cases for one
reason: We are afraid to ask for them. We are afraid of what will happen in the
appellate process,” he said. “This verdict is important because it goes back to
an ongoing saga that goes back to 1990. People have been filing suit one by one,
and we have been winning about 70 percent of them.”
Correction: July 19, 2014
An earlier version of this article misstated
the location of Willie E. Gary,
a
lawyer for Cynthia Robinson.
He is based in Florida, not Georgia.
A version of this article appears in print
on July 20, 2014,
on page A17 of the
New York edition
with the headline:
Jury Awards $23.6 Billion in Florida Smoking
Case.
WASHINGTON — In a broad review of scientific literature, the
nation’s top doctor has concluded that cigarette smoking — long known to cause
lung cancer and heart disease — also causes diabetes, colorectal and liver
cancers, erectile dysfunction and ectopic pregnancy.
In a report to the nation to be released on Friday, the acting surgeon general,
Dr. Boris D. Lushniak, significantly expanded the list of illnesses that
cigarette smoking has been scientifically proved to cause.
The other health problems the report names are vision loss, tuberculosis,
rheumatoid arthritis, impaired immune function and cleft palates in children of
women who smoke.
Smoking has been known to be associated with these illnesses, but the report was
the first time the federal government concluded that smoking causes them.
The finding does not mean that smoking causes all cases of the health problems
and diseases listed in the report, but that some of the cases would not have
happened without smoking. The surgeon general has added to the list of
smoking-related diseases before. Bladder cancer was added in 1990 and cervical
cancer in 2004.
The report is not legally binding, but is broadly held as a standard for
scientific evidence among researchers and policy makers.
Experts not involved in writing the report said the findings were a
comprehensive summary of the most current scientific evidence, and while they
might not be surprising to researchers, they were intended to inform the public
as well as doctors and other medical professionals about the newest proven risks
of smoking.
“I thought the science was very well done and up to date,” said Dr. Robert
Wallace, a professor of epidemiology and internal medicine at the University of
Iowa, who helped review the report.
The report comes 50 years after the pivotal 1964 surgeon general’s report in
which the government concluded for the first time that smoking caused lung
cancer. That report was credited with starting to change public attitudes toward
smoking, which has declined sharply. In 1965, about 43 percent of adults were
smokers; in 2012, about 18 percent were.
But that decline has slowed in recent years, and the new report calls for
stronger action in combating smoking. Smoking is the largest cause of premature
death in the country, killing more than 400,000 people a year. The report notes
that far more Americans have died prematurely from cigarette smoking than in all
the wars ever fought by the United States.
The report concluded that the evidence was insufficient to say that smoking
caused prostate cancer. The evidence was suggestive, but not definite, that
smoking causes breast cancer.
The document also celebrates the public health success of smoking’s decline
since Dr. Luther Terry, the surgeon general in 1964, released his landmark
finding. Smoking was deeply embedded in American culture at the time. Half of
adult men were smokers, and a third of women. Even doctors smoked.
That report was so controversial that it was released on a Saturday when
Congress was on recess to minimize the political repercussions, said Dr. Richard
D. Hurt, a professor of medicine at the Mayo Clinic.
Dr. Judith Fradkin, a diabetes scientist at the National Institutes of Health,
who was not involved in the report, said the evidence that smoking increases the
risk of Type 2 diabetes had been gathering for about 20 years.
While smoking causes most cases of lung cancer, it causes only a small fraction
of liver and colorectal cancers. A current smoker is 25 times as likely to
develop lung cancer as someone who has never smoked, but only about 1.5 times as
likely to develop liver cancer.
“It’s a fairly modest association, but because so many people smoke, it’s still
an important cause of these cancers,” said Neal Freedman, an epidemiologist at
the National Cancer Institute.
He pointed out that the surgeon general last looked at the effect of smoking on
liver cancer in 2004, and found the evidence only suggestive. Since then, 90 new
studies have been published allowing the surgeon general to conclude smoking is
a cause.
The report also finds that the risks of lung cancer are far higher today than in
past decades, even though smokers today consume fewer cigarettes. In 1959, women
who smoked were 2.7 times as likely as women who never smoked to develop lung
cancer, and by 2010, the additional risk had jumped nearly tenfold. For men, the
risk doubled over the same period. The report said changes in cigarettes’
design, namely to the filter, contributed to the increased deadliness.
“It is stunning that the risk of a premature death from smoking is greater than
it was 50 years ago,” said Matthew Myers, head of the Campaign for Tobacco-Free
Kids, an advocacy group.
A version of this article appears in print on January 17, 2014,
on page A15 of the New York edition with the headline:
List of Smoking-Related Illnesses Grows Significantly
December 6,
2012
The New York Times
By SABRINA TAVERNISE
Faced with
tight budgets, states have spent less on tobacco prevention over the past two
years than in any period since the national tobacco settlement in 1998, despite
record high revenues from the settlement and tobacco taxes, according to a
report to be released on Thursday.
States are on track to collect a record $25.7 billion in tobacco taxes and
settlement money in the current fiscal year, but they are set to spend less than
2 percent of that on prevention, according to the report, by the Campaign for
Tobacco-Free Kids, which compiles the revenue data annually. The figures come
from state appropriations for the fiscal year ending in June.
The settlement awarded states an estimated $246 billion over its first 25 years.
It gave states complete discretion over the money, and many use it for programs
unrelated to tobacco or to plug budget holes. Public health experts say it lacks
a mechanism for ensuring that some portion of the money is set aside for tobacco
prevention and cessation programs.
“There weren’t even gums, let alone teeth,” Timothy McAfee, the director of the
Office on Smoking and Health at the Centers for Disease Control and Prevention,
said, referring to the allocation of funds for tobacco prevention and cessation
in the terms of the settlement.
Spending on tobacco prevention peaked in 2002 at $749 million, 63 percent above
the level this year. After six years of declines, spending ticked up again in
2008, only to fall by 36 percent during the recession, the report said.
Tobacco use is the No. 1 cause of preventable death in the United States,
killing more than 400,000 Americans every year, according to the C.D.C.
The report did not count federal money for smoking prevention, which Vince
Willmore, the vice president for communications at the Campaign for Tobacco-Free
Kids, estimated to be about $522 million for the past four fiscal years. The sum
— about $130 million a year — was not enough to bring spending back to earlier
levels.
The $500 million a year that states spend on tobacco prevention is a tiny
fraction of the $8 billion a year that tobacco companies spend to market their
products, according to a Federal Trade Commission report in September.
Nationally, 19 percent of adults smoke, down from over 40 percent in 1965. But
rates remain high for less-educated Americans. Twenty-seven percent of Americans
with only a high school diploma smoke, compared with just 8 percent of those
with a college degree or higher, according to C.D.C. data from 2010. The highest
rate — 34 percent — was among black men who did not graduate from high school.
“Smoking used to be the rich man’s habit,” said Danny McGoldrick, the vice
president for research at the Campaign for Tobacco-Free Kids, “and now it’s
decidedly a poor person’s behavior.”
Aggressive antismoking programs are the main tools that cities and states have
to reach the demographic groups in which smoking rates are the highest, making
money to finance them even more critical, Mr. McGoldrick said.
The decline in spending comes amid growing certainty among public health
officials that antismoking programs, like help lines and counseling, actually
work. California went from having a smoking rate above the national average 20
years ago to having the second-lowest rate in the country after modest but
consistent spending on programs that help people quit and prevent children from
starting, Dr. McAfee said.
An analysis by Washington State, cited in the report, found that it saved $5 in
tobacco-related hospitalization costs for every $1 spent during the first 10
years of its program.
Budget cuts have eviscerated some of the most effective tobacco prevention
programs, the report said. This year, state financing for North Carolina’s
program has been eliminated. Washington State’s program has been cut by about 90
percent in recent years, and for the third year in a row, Ohio has not allocated
any state money for what was once a successful program, the report said.
March 15,
2012
The New York Times
By GARDINER HARRIS
For the
first time, the federal government will directly attack the nation’s tobacco
addiction with a series of advertisements highlighting the grisly toll of
smoking, a campaign that federal health officials hope will renew the stalled
decline in the share of Americans who smoke.
The government’s investment in the campaign is relatively modest: $54 million
this year. The tobacco industry spends that much and more, on average, in just
two days of promotional efforts. California has spent about $20 million annually
since 2000 on anti-tobacco advertising, while New York spent about $10 million
annually between 2003 and 2009. Other states also finance such ads.
But the effort by the Centers for Disease Control and Prevention is the first in
which such advertisements will be played throughout the country. Dr. Thomas R.
Frieden, the C.D.C.’s director, said the campaign would save lives and money.
“We estimate that this campaign will help about 50,000 smokers to quit smoking,”
Dr. Frieden said Wednesday in an interview. “And that will translate not only
into thousands who will not die from smoking but it will pay for itself in a few
years in reduced health costs.”
The advertisements, which will appear on television and in newspapers starting
Monday, show former smokers discussing the terrible health consequences of their
habits.
In one TV ad, Terrie, 51, of North Carolina, who has a hole in her neck and
barely any hair on her head after suffering head and neck cancer, tells the
camera, “I want to give you some tips about getting ready in the morning.” She
then pops in a set of false teeth, dons a blond wig and inserts a small speaker
into the tracheotomy in her neck. She ties on a scarf to hide the device and
says, “And now you’re ready for the day.” An announcer says: “You can quit. For
free help, call 1-800-QUIT-NOW.”
Studies have shown that such graphic advertisements are effective in persuading
smokers to quit, but they have also often led to opposition from smokers, who
call them alarming and demeaning, and to efforts by the industry to end
financing for the ads.
David Howard, a spokesman for the R. J. Reynolds Tobacco Company, which makes
Camel and Pall Mall cigarettes, declined to comment directly on the advertising
campaign because he had not seen it.
“We believe that adult tobacco consumers should be provided with accurate
information about the risks associated with tobacco use,” he said. R. J.
Reynolds is part of a group of tobacco makers that have sued the Food and Drug
Administration to overturn rules that would require cigarette companies to cover
much of their packaging with graphic warning labels. Two weeks ago, a federal
judge in Washington declared the rules an unconstitutional violation of the
companies’ free speech rights. The government is appealing.
Mr. Howard said that he doubted that tobacco companies would raise similar
objections to the C.D.C. advertising campaign since it would not involve “taking
our packaging to deliver anti-tobacco information.”
Dr. John Seffrin, chief executive of the American Cancer Society, said that
cancer mortality rates are dropping faster than ever in the United States, and
that the reduction in the proportion of Americans who smoke is one of the main
reasons. He noted that a third of all cancers are directly attributable to
smoking, and that many smoking-related cancers are unusually deadly and
expensive to treat.
“If this ad campaign helps people quit and prevents some from starting, it’s the
right thing to do,” he said.
Along with vaccinations, few public health efforts have the capacity to save as
many lives as those that combat smoking.
Smoking remains the leading cause of preventable death and disease in the United
States, killing more than 443,000 Americans each year, according to federal
estimates. More than eight million Americans live with a smoking-related
disease.
The C.D.C. ads will emphasize that smoking causes immediate damage to the body,
and feature three former smokers providing tips about how they successfully
quit.
“I’ve been waiting for the government to do this for 40 years,” said Matthew L.
Myers, president of the Campaign for Tobacco-Free Kids. “Even in the tightest
budget times, this is absolutely the right thing to do.”
November
16, 2011
The New York Times
By REED ABELSON
More and
more employers are demanding that workers who smoke, are overweight or have high
cholesterol shoulder a greater share of their health care costs, a shift toward
penalizing employees with unhealthy lifestyles rather than rewarding good
habits.
Policies that impose financial penalties on employees have doubled in the last
two years to 19 percent of 248 major American employers recently surveyed. Next
year, Towers Watson, the benefits consultant that conducted the survey, said the
practice — among employers with at least 1,000 workers — was expected to double
again.
In addition, another survey released on Wednesday by Mercer, which advises
companies, showed that about a third of employers with 500 or more workers were
trying to coax them into wellness programs by offering financial incentives,
like discounts on their insurance. So far, companies including Home Depot,
PepsiCo, Safeway, Lowe’s and General Mills have defended decisions to seek
higher premiums from some workers, like Wal-Mart’s recent addition of a
$2,000-a-year surcharge for some smokers. Many point to the higher health care
costs associated with smoking or obesity. Some even describe the charges and
discounts as a “more stick, less carrot” approach to get workers to take more
responsibility for their well-being. No matter the characterizations, it means
that smokers and others pay more than co-workers who meet a company’s health
goals.
But some benefits specialists and health experts say programs billed as
incentives for wellness, by offering discounted health insurance, can become
punitive for people who suffer from health problems that are not completely
under their control. Nicotine addiction, for example, may impede smokers from
quitting, and severe obesity may not be easily overcome.
Earlier this year, the American Cancer Society and the American Heart
Association were among groups that warned federal officials about giving
companies too much latitude. They argued in a letter sent in March that the
leeway afforded employers could provide “a back door” to policies that
discriminate against unhealthy workers.
Kristin M. Madison, a professor of law and health sciences at Northeastern
University in Boston, said, “People are definitely worried that programs will be
used to drive away employees or potential employees who are unhealthy.”
Current regulations allow companies to require workers who fail to meet specific
standards to pay up to 20 percent of their insurance costs. The federal health
care law raises that amount to 30 percent in 2014 and, potentially, to as much
as half the cost of a policy.
When Wal-Mart Stores, the nation’s largest employer, recently sought the higher
payments from some smokers, its decision was considered unusual, according to
benefits experts. The amount, reaching $2,000 more than for nonsmokers, was much
higher than surcharges of a few hundred dollars a year imposed by other
employers on their smoking workers.
And the only way for Wal-Mart employees to avoid the surcharges was to attest
that their doctor said it would be medically inadvisable or impossible to quit
smoking. Other employers accept enrollment in tobacco cessation programs as an
automatic waiver for surcharges.
“This is another example of where it’s not trying to create healthier options
for people,” said Dan Schlademan, director of Making Change at Walmart, a
union-backed campaign that is sharply critical of the company’s benefits. “It
looks a lot more like cost-shifting.”
Wal-Mart declined to make an official available for an interview and provided
limited answers to questions through an e-mail response. “The increase in
premiums in tobacco users is directly related to the fact that tobacco users
generally consume about 25 percent more health care services than nontobacco
users,” said Greg Rossiter, a company spokesman.
Wal-Mart requires an employee to have stopped smoking to qualify for lower
premiums. The company, which has more than one million employees, started
offering an antismoking program this year, and says more than 13,000 workers
have enrolled.
Some labor experts contend that employers can charge workers higher fees only if
they are tied to a broader wellness program, although federal rules do not
define wellness programs.
Employers cannot discriminate against smokers by asking them to pay more for
their insurance unless the surcharge is part of a broader effort to help them
quit, said Karen L. Handorf, a lawyer who specializes in employee benefits for
Cohen Milstein Sellers & Toll in Washington.
Many programs that ask employees to meet certain health targets offer rewards in
the form of lower premiums. At Indiana University Health, a large health system,
employees who do not smoke and achieve a certain body mass index, or B.M.I., can
receive up to $720 a year off the cost of their insurance. “It’s all about the
results,” said Sheriee Ladd, a senior vice president in human resources at the
system.
Initially the system also rewarded employees who met cholesterol and blood
glucose goals, but after workers complained that those hurdles seemed punitive,
Indiana shifted its emphasis a bit.
Workers who do not meet the weight targets can be eligible for lower premiums if
a doctor indicates they have a medical condition that makes the goal
unreasonable, Ms. Ladd said. “There are not many of those who come forward, but
it’s available,” she said, adding that workers must be nonsmoking to get the
other discount. About 65 percent of roughly 16,000 workers receive a discount.
Some benefits consultants say companies may be increasingly willing to test the
boundaries of the law because there has been little enforcement, even though
there is a provision requiring employers to accommodate workers with medical
conditions limiting their ability to meet certain standards. “They are thumbing
their nose at the accommodation provision,” said Michael Wood, a consultant at
Towers Watson.
Still, “The employer is going to win not by cost-shifting but by getting people
to stop smoking,” said Barry Hall, an executive at Buck Consultants, which
advises employers.
Some versions of tougher standards have already been abandoned. The UnitedHealth
Group, for example, had introduced a health plan called Vital Measures, which
allowed workers to reduce the size of their deductible by meeting various health
targets, but discontinued the offering three years ago because of insufficient
demand, according to a spokesman. The insurer now offers plans that allow
employees to earn rewards by either achieving health targets or participating in
a coaching program to improve their health.
Wal-Mart’s decision to start charging smokers more for insurance came abruptly,
according to some employees who say they had no chance to quit or consult a
doctor. Jerome Allen, who works for Wal-Mart in Texas, says he realized he was
paying $40 a month more as a smoking surcharge only when he saw a printout of
his insurance coverage.
“Forty dollars is a lot of money,” said Mr. Allen, 63, who works part time. He
says he has now quit smoking.
Wal-Mart says it mailed information about benefits changes weeks in advance of
the enrollment deadline.
Under Wal-Mart’s programs, employees who want to enroll in some of the company’s
more generous plans, which offer lower deductibles and out-of-pocket maximums,
can pay as much as $178 a month, or more than $2,000, a year more if they smoke.
Many other companies charge smokers a smaller, flat amount, and have kept any
financial penalties under the 20 percent threshold set by the federal rules,
according to benefits experts. Target, a Wal-Mart competitor, does not charge
smokers more for insurance, while Home Depot charges a smoker $20 a month.
PepsiCo requires smokers to pay $600 a year more than nonsmokers unless they
complete an antismoking program.
Some critics say Wal-Mart’s surcharge may have the effect of forcing people to
opt for less expensive plans or persuade them to drop coverage altogether. Dr.
Kevin Volpp, the director of the Center for Health Incentives and Behavioral
Economics at the Leonard Davis Institute at the University of Pennsylvania,
pointed out that surcharges and stringent health targets might wind up
endangering those whose health was already at high risk. “There is this
potentially very significant set of unintended consequences,” he said.
November
14, 2011
9:00 pm
The New York Times
By STANLEY FISH
I’m sure
you’ve noticed those TV ads for pharmaceutical products that include an
incredibly long list of side effects and possible hazards recited by a cheerful
voice as men and women are shown living the happy lives made possible by a drug
that can inflict on them everything from bloating and joint pain to death. This
combination of positive and negative communications is mandated by the
government requirement that drug manufacturers must disclose all the risk
factors attending the product they are hawking.
The result is what one might call the “battle of information.” The drug
companies are providing information about the benefits of their product, and
under duress (it would not be their choice to do this) they are also providing
information about the dangers of that same product. It is their hope that the
positive message will have more impact than the negative one, and that hope is
supported by the fact that they get to tell their happy story in images (look
what this drug can do for you), while the other, distressing story (hear what
this drug can do to you) is conveyed by words. The companies are counting on the
fact that not all information-delivery systems are equal and, as the old proverb
goes, a picture is worth a thousand words.
The same dynamics are on display in a case decided on Nov. 7 in the United
States District Court for the District of Columbia, but the positions are
reversed: it is the government that is deploying images and the drug companies —
in this case tobacco companies — that are standing up for words.
FDA, via/European Pressphoto AgencyAn example of an ad campaign warning people
about smoking.
The case — R. J. Reynolds et al v. United States Food and Drug Administration —
concerns the F.D.A.’s plan to augment the textual warnings on cigarette packages
with graphic color images, including diseased lungs, a cadaver on an autopsy
table and a man blowing smoke from a hole in his throat. The tobacco companies
requested an injunction on the implementation of the plan until certain
constitutional matters could be resolved in the courts. They argued that the
“mandatory graphic images unconstitutionally compel speech”; for were they in
place every cigarette package would be a “mobile billboard” for a message the
companies did not choose to proclaim, but one they were required to display and,
in effect, pay for. (This of course would not be materially different from the
list of risk factors drug manufacturers are required to insert in ads they pay
for.)
The companies also claim that “the purpose and effect of the warnings is to
drown out Plaintiff’s own constitutionally protected speech and replace it with
the Government’s emotionally-charged anti-smoking message.”
“Emotionally-charged” is the key phrase here. The companies do not object to
particular images, but to the use of images at all because they speak to the
emotions and, in this instance, are “designed to shock, disgust and frighten”
rather than “provide purely factual and uncontroversial information.”
But is the producing of an effect, even of an effect that is visceral, unrelated
to the communication of information? Maybe yes if we’re talking about a horror
movie where the eliciting of shock, disgust and fear is the entire point. That’s
what people go to horror movies for — to experience an emotional rollercoaster
that is unattached to any cognitive message.
In the case of the tobacco warnings, however, the emotions intentionally
produced by the graphic images bring a cognitive message home. It is in fact a
horror-message — if you smoke, all kinds of horrible things are likely to happen
to you — and it is the government’s judgment, expressed in its brief, that the
print warnings we are now accustomed to have become “stale” and no longer
“convey [the] relevant information in an effective way,” no longer, that is,
convey the message.
Of course, the tobacco industry has lived with print warnings for a long time
and is fully aware of how humdrum they have become. What alarms them is the
specter (another kind of horror show) of warnings that might really convey the
relevant information effectively. What alarms them is not that the proposed
images distort the truth, but that they tell it. “Ultimately,” the government’s
brief concludes, “plaintiff’s objection to the pictorial health warnings is not
that they are false, but that they are true.”
Given that the conveying of true information about the risks of a legal product
has been held constitutional even when the government burdens a manufacturer’s
delivery of its message, one would have expected the government to prevail. But
is does not. Judge Richard J. Leon issued the injunction sought by the tobacco
companies and gave as a reason the illegitimacy of images as conveyers of
information: “[T]he government’s emphasis on the images’ ability to provoke
emotion strongly suggests that the government’s actual purpose is not to inform,
but rather to advocate a change in consumer behavior.” And again, “the graphic
warnings cross the line from information to advocacy.”
This is wrong in both directions. Images can inform and the bare recital of
information can advocate by appealing to the emotions. The line Leon wants to
draw is, at best, a blurry one, as is his contrast (borrowed from the
plaintiff’s brief) between images “calculated to provoke the viewer to quit” and
“disseminating purely factual and uncontroversial information.” It takes only a
second’s thought to undermine the contrast. Is the factual and uncontroversial
assertion that “ smoking can kill you” (one of the new print warnings) without
persuasive intent or effect? “Oh, I just thought I’d tell you that smoking kills
and can harm your children. Nothing hortatory on my mind, just sayin’.” And just
as the information that smoking kills is offered with the intention to “provoke”
the informee to quit, so is the image of a cadaver on a slab offered with the
intention of conveying a piece of factual and uncontroversial information —
smoking kills.
Leon regards that image as non-factual and therefore controversial because, he
says, the government does not offer “a single shred of evidence to support the
proposition that smoking causes autopsies.” But the proposition is not that
smoking causes autopsies, it’s that smoking causes death, and there’s plenty of
evidence of that. In order to draw from the image the conclusion he wants to
reach, Leon must read it in an obtusely literal way as claiming that every time
a cadaver lies on an autopsy table it has been brought there by smoking.
The claim, however, is at once narrower in scope and less controversial, in fact
not controversial at all: if you continue smoking, one of the things likely to
happen is that you’ll end up on a slab. The image of the cadaver stands in for
death, for the proposition that smoking kills. It is an example of metonymy, a
figure of speech in which a thing or concept — in this case death — is not
presented directly but by reference to something — the condition of being in a
morgue — with which it is closely associated. As a figure of speech, metonymy
operates at a remove from the object it points us to; it requires an inference.
But the inference, once made (and it is no trick at all to make it), puts us in
direct and forceful contact with an uncontroversial fact.
If Leon’s objection to the image were taken seriously, if assertions of fact
could be made only in the absence of figures of speech — no metonymies,
allusions, metaphors, comparisons, similes, patterned repetitions and a thousand
other deviations from an impossible literalism — the account of even a single
fact would fill 300 pages. As John McEnroe is fond of saying, “you cannot be
serious.”
But apparently Judge Leon is serious and one can only wonder why. The answer
given on some left-wing blogs is that he is in the pocket of the tobacco
industry. But a more generous and analytic answer might point to a very old
philosophical/theological tradition in which he enrolls himself, perhaps
unwittingly. That tradition is marked by two related oppositions. The first
opposes the verbal to the visual and stigmatizes the latter as the medium of
deception and false appearances. Aristotle’s distrust of spectacle (opsis)
founds an anti-theatrical prejudice that finds a high (or low) watermark in
Stephen Gosson’s “School of Abuse” (1579) and Ben Jonson’s invectives against
the set designer Inigo Jones. The theological counterpart to this prejudice is
derived from the second commandment (“thou shalt not make unto thee any graven
image”) and 1 John 2:16: “For all that is in the world, the lust of the flesh,
and the lust of the eyes, and the pride of life is not from the Father, but is
from the world.” The fruits of these texts can be seen in the periodic eruption
of iconoclastic frenzy.
The second opposition in the tradition is located within the realm of the verbal
itself. The literal, identified with pure observation and description, is
opposed to the rhetorical, identified (again) with deception and with a
surrender to the lure of surfaces and to base emotional appeals.
Either singly or in combination, the two binaries — words vs. images and
literal, information-bearing words vs. words aiming to persuade — have led to a
search for what Thomas Kuhn has called a “neutral observation language,” a
super-literal language uninflected and uninfected by the distortions of any
human, or as Leon terms it, “subjective” perspective. Although there have been
innumerable attempts to come up with such a language — from the efforts to
recover the language of Eden, to the linguistic reforms (no figures of speech)
proposed by England’s Royal Society in the 17th century, to the 20th century
logical positivists, to the construction of artificial languages with
universalist ambitions like Esperanto — it has never been found and never will
be found. One could say, then, that Judge Leon’s reasoning and the decision it
leads to are based on a linguistic mirage, a will o’ the wisp, although the
damage the decision might allow to be done, if it is upheld, is no mirage at
all.
November 7,
2011
The New York Times
By DUFF WILSON
A federal
judge on Monday blocked a Food and Drug Administration requirement that tobacco
companies put big new graphic warning labels on cigarette packages by next
September.
In a preliminary injunction, Judge Richard J. Leon of United States District
Court in Washington ruled that cigarette makers were likely to win a free speech
challenge against the proposed labels, which include staged photos of a corpse
and of a man breathing smoke out of a tracheotomy hole in his neck.
The judge ruled that the labels were not factual and required the companies to
use cigarette packages as billboards for what he described as the government’s
“obvious anti-smoking agenda!”
The 29-page ruling was a setback for Congressional and F.D.A. efforts to bolster
the warnings on tobacco packages. The agency has said they are the most
significant change to health warnings in 25 years.
The Justice Department is reviewing the ruling, a spokesman, Charles S. Miller,
said. The F.D.A. declined to comment, a spokeswoman said.
If the ruling is appealed — as both sides expect — it would join a different
federal judge’s ruling on similar issues on appeal and raise the possibility
that the issue will be decided by the United States Supreme Court.
Floyd Abrams, a New York lawyer and First Amendment specialist who argued the
case for Lorillard Tobacco of Greensboro, N.C., praised the ruling. He said the
companies had just objected to “grotesque” images, but not to new words of
warning.
“It’s basically rooted in the notion that compelled speech by the government is
presumptively unconstitutional,” Mr. Abrams said. “The only exception that could
fit here is the one which says that the government can require warnings to be
placed on products including tobacco products, but that the warnings must be
factual and uncontroversial in nature.”
Five tobacco companies had challenged the selection of nine specific graphic
warnings as an unconstitutional intrusion on commercial free speech. The judge
agreed with them on almost every point, saying the companies would suffer
irreparable harm if the provision were enforced before it was fully decided in
courts, a process that is likely to take years.
“It is abundantly clear from viewing these images that the emotional response
they were crafted to induce is calculated to provoke the viewer to quit, or
never to start, smoking: an objective wholly apart from disseminating purely
factual and uncontroversial information,” Judge Leon wrote.
“At first blush, they appear to be more about shocking and repelling than
warning,” Judge Leon added in a footnote.
Antismoking activists called on the Justice Department to appeal immediately.
“This ruling presents a direct and immediate threat to public health,” Charles
D. Connor, president and chief executive of the American Lung Association, said
in a statement. “The tobacco industry’s efforts to halt the replacement of
cigarette warning labels that are 25 years old, ineffective and hidden on the
side of packages, will result in more lives lost to tobacco.”
Matthew L. Myers, a lawyer and president of the Campaign for Tobacco-Free Kids,
a Washington advocacy group, said Judge Leon had sympathized with tobacco
companies during oral arguments.
“The government has been expecting this decision and will appeal,” Mr. Myers
said. “In addition, many of the same issues are now pending before a panel of
the United States Court of Appeals for the Sixth Circuit because a federal judge
in Kentucky reached a decision different than Judge Leon’s decision today.”
In that case, Judge Joseph H. McKinley Jr. ruled the cigarette makers could be
forced to put graphic images and warnings on the top half of their packages, as
Congress required. But Judge Leon noted that Judge McKinley had not seen the
actual proposed images.
Judge Leon was appointed to the bench in 2002 by President George W. Bush. Last
year, Judge Leon also ruled against the F.D.A. over e-cigarettes, an electronic
device that looks like a cigarette and delivers nicotine, saying they should be
regulated as tobacco products rather than under the stricter regimen as drug
delivery devices. The government has not appealed that case.
The Family Smoking Prevention and Tobacco Control Act of 2009 gave the F.D.A.
authority for the first time to regulate tobacco products. It included a
provision directing the F.D.A. to require larger, graphic warning labels
covering the top half of the front and back of cigarette packs by Sept. 22,
2012, as well as 20 percent of print advertising.
The F.D.A. had studied 36 images and narrowed them down to nine after surveys of
effectiveness. The photos are similar to some included with cigarettes in
Canada. But the tobacco companies argued, and the judge agreed, that the F.D.A.
could not prove the images would make a statistically significant difference in
smoking rates in the United States.
“We are pleased with the judge’s ruling and look forward to the court’s final
resolution of this case,” Bryan D. Hatchell, a spokesman for R.J. Reynolds
Tobacco of Winston-Salem, N.C., makers of Camel cigarettes, said after the
ruling.
Other plaintiffs in the suit are Commonwealth Brands, the Liggett Group, and
Santa Fe Natural Tobacco. The Altria Group, parent company of Philip Morris,
makers of the dominant brand of Marlboro cigarettes, did not join the lawsuit.
Altria was also the only major cigarette maker to support the new legislation.
Chantix,
the best-selling prescription drug for smoking cessation, was linked to an
increased risk of a heart attack, stroke or other serious cardiovascular event
for smokers without a history of heart disease compared with smokers who did not
use the drug, according to a Canadian medical journal report released on Monday.
The finding added to previous warnings about the pill’s connection to
psychiatric problems and cardiovascular risks for people with a history of heart
disease.
It posed a new challenge to a product that has been prescribed to 13 million
people and had $755 million in sales last year.
Officials of Pfizer, the manufacturer of Chantix, and the Food and Drug
Administration responded that they had been planning to conduct a joint analysis
of clinical trials on whether Chantix posed heart risks, due next year.
“This would have raised a red flag for us if the flag hadn’t already been
flying,” Dr. Celia Winchell, a team leader with the agency’s Center for Drug
Evaluation and Research, said in an interview.
Pfizer, in a statement, said the analysis in the Canadian Medical Association
Journal was based on too few heart or cardiovascular events to draw conclusions
about the risks. The company said Chantix brought “immediate and substantial”
health benefits to smokers who quit.
The senior author of the new report, Dr. Curt D. Furberg, a Wake Forest medical
professor, said there were better ways to quit and called for removal of the
drug from the market.
“It piles up,” he said. “I don’t see how the F.D.A. can leave Chantix on the
market.”
The lead author, Dr. Sonal Singh, assistant professor of medicine at Johns
Hopkins University, said the agency and Pfizer had failed to pursue signs of
cardiovascular risk since Chantix was approved in 2006.
“The F.D.A. should have already put it on their warning label,” Dr. Singh said.
“The risk is substantial, the risk is present in smokers without heart disease,
and Pfizer knew about this for five years.”
Last month, the agency issued a safety notice about cardiovascular risk from
Chantix use by people with a history of cardiovascular disease, based on a study
of 700 people.
The new report is broader, analyzing 14 randomized clinical trials involving
8,200 patients, excluding those with cardiovascular disease so that it gives a
better picture of which heart problems the drug could cause in otherwise healthy
people trying to quit smoking.
The new study, known as a meta-analysis, compiled data from 14 random, blinded,
placebo-controlled clinical trials that tracked cardiovascular outcomes. It
found 52 out of 4,908 people taking Chantix had serious cardiovascular events, a
rate of 1.06 percent, compared with 27 out of 3,308 people taking a placebo, a
rate of 0.82 percent. While the absolute difference is only 0.24 percent, the
weighted, relative difference is 72 percent.
“We have known for many years that Chantix is one of the most harmful
prescription drugs on the U.S. market, based on the number of serious adverse
effects reported to the F.D.A.,” Dr. Furberg said in a statement. “It causes
loss of consciousness, visual disturbances, suicides, violence, depression and
worsening of diabetes. To this list we now can add serious cardiovascular
events.”
Dr. Furberg, who once directed clinical trials for the government and writes
widely about drug safety, has been paid as an expert witness in cases against
Pfizer. Dr. Singh and two other researchers said they had no conflicts of
interest.
When combining studies of smokers with and without pre-existing disease, the
study found that doctors could expect to get one extra cardiac event associated
with Chantix for every 28 smokers they treated with the drug. The researchers
also estimated one additional person would quit for every 10 treated with
Chantix.
The benefit of Chantix was emphasized in a separate commentary in the journal by
Dr. J. Taylor Hays of the Mayo Clinic in Rochester, Minn. He described the
meta-analysis as “timely and important” but said it lacked overall size and
standardization. Dr. Hays, who has been paid by Pfizer to study Chantix, said
the benefits of quitting smoking outweighed the risks of the drug.
Chantix is selling well overseas. In Japan, for instance, some pharmacies ran
out for a while recently, even as the drug failed to meet expectations in the
United States because of health warnings and bad publicity.
Companies have started adding the ability to communicate wirelessly to an
increasing range of devices, like tablet computers, cars and refrigerators.
Now they are doing it with cigarettes.
Blu, the maker of electronic cigarettes that release a nicotine-laden vapor
instead of smoke, has developed packs of e-cigarettes with sensors that will let
users know when other e-smokers are nearby.
Think of it as social smoking for the social networking era.
“You’ll meet more people than ever, just because of the wow factor,” said Jason
Healy, the founder of Blu, who did not appear to be making friends as he exhaled
the odorless vapor of an e-cigarette at a coffee shop in Midtown Manhattan
recently. “It’s like with any new technology.”
E-cigarettes have several obvious advantages to their traditional counterparts.
They allow users to avoid bans on smoking in public places because they release
only water vapor. Mr. Healy and other e-cigarette manufacturers also claim that
they have practically no negative health effects — an assertion that draws
skepticism in many quarters. But the devices are also, in their own way,
gadgets.
The new “smart packs,” which will go on sale next month for $80 for five
e-cigarettes, are equipped with devices that emit and search for the radio
signals of other packs. When they get within 50 feet of one another, the packs
vibrate and flash a blue light.
The reusable packs, which serve as a charger for the cigarettes, can be set to
exchange information about their owners, like contact information on social
networking sites, that can be downloaded onto personal computers.
The packs also conveniently vibrate when a smoker nears a retail outlet that
sells Blu cigarettes.
Later versions will be tethered to a smartphone through an app, allowing more
options for real-time communication, Mr. Healy said. The company also plans to
develop a system through which the packs will monitor how much people are
smoking and report back to them — or to their doctors.
Marketers think people want more devices to link to each other. More than 105
million adult Americans have at least two types of connected devices, and 37
million have five or more, according to Forrester Research.
Nintendo’s new hand-held gaming systems, the 3DS, communicate with one another
when brought into close proximity. A smartphone app called Color allows users to
take photographs that are then automatically shared with anyone nearby who has
also downloaded the app. It recently raised $41 million from venture
capitalists.
But Charles S. Golvin, an analyst at Forrester Research who has studied
connected devices, said that ideas like Blu’s connected cigarettes or Color show
that digital connections can get ahead of the reasons for doing so.
“The way that groups of affinity are conferred just by physical proximity makes
a bit of sense,” he said. “If someone walks by with a Nintendo, great, I share a
common interest. The fact that I walk by a smoker? Seems like a weak link.”
Mr. Healy says he thinks the connected packs would be most useful in nightclubs,
where people are interested in striking up conversations and want to smoke
without being forced outside.
Adam Alfandary, 24, a Brooklyn resident who works for a technology start-up, was
skeptical. He said that the social aspects of smoking were a part of the reason
he continued to light up, but he scoffed at the idea of a cigarette that would
do the social part for him. “I think that’s the dumbest thing I’ve ever heard in
my life,” he said.
“And I’m saying that in full acknowledgment that smoking is one of the dumbest
things I can do.”
When Mayor Michael Bloomberg began his campaign against cigarette smoking
eight years ago, most New Yorkers breathed a sigh of relief. The great indoors —
bars, restaurants, hotels, office buildings — all are now smoke-free by law,
making New York City a healthier place. And, for those already addicted or
tempted, the city offered kits to help people stop smoking and gruesome
television ads to try to keep them from starting.
That antismoking campaign has been a great public service, but now the mayor and
City Council have overreached. The council voted — 36 to 12 — to ban smoking
outdoors in city parks, beaches and even plazas, including in Times Square.
No smoking at the crossroads of the world? The vortex of tourism that brings
smokers and nonsmokers in great numbers? The site of the world’s most famous New
Year’s Eve party, where who knows what goes on? All of this takes the mayor’s
nannying too far, even for those of us who want to avoid the hazards of
secondhand smoke.
Already smokers are forced to huddle outside, these days perched on the city’s
gray, leftover snowdrifts. Starting in early summer, after the mayor signs the
bill into law, they will not be able to stray onto the 14 miles of city beaches
or into the city’s 1,700 parks, not even Central Park or windswept Battery Park.
Instead of smoking on Brighton Beach, what does a smoker do — take a boat out 12
nautical miles into international waters?
Some City Council members wanted to find a less-drastic solution — like having
the ban but establishing smoking areas on the beach or patches of the park. It’s
not great, but it’s better than an all-out ban. Also, the city would have to
provide a lot more receptacles for cigarette butts and enforce antilittering
laws in those areas.
Meanwhile, there is talk that the mayor and the City Council want even more,
like banning smoking near doors of office buildings and apartments. They need to
take a deep breath and remember that we tried prohibition 90 years ago. They
called it a noble experiment. It turned into a civic disaster.
For thirty years or more the
scandal sheets have printed articles on "The Tobacco Habit" as a mild variation
on their standard treatment of such shockers as prostitution, political graft,
and the traffic in dope. The tobacco companies paid only sidelong heed, with
bold hints that, on the contrary, a cigarette was a relaxant, a soothing syrup
and a social grace.
Their long golden age — twenty years of soaring sales — exploded in a bombshell
prepared by Dr. Ernest Wynder of New York and Dr. Evarts Graham of St Louis.
They reported they had produced skin cancer in 44 per cent of the mice painted
with tobacco tar condensed from cigarette smoke.
This study was hardly as comprehensive as the British study of fifteen hundred
human lung-cancer patients, but it was piquant. The newspapers sat up when the
Institute of Industrial Medicine examined all the tumours reported in the
Wynder-Graham study and declared them to be malignant.
Papers [reported] speeches made by Dr. Wynder and Dr. Ochner, Chief of Surgery
at Tulane University. Dr. Wynder quoted thirteen American and foreign studies to
conclude that "the prolonged and heavy use of cigarettes increases up to twenty
times the risk of developing cancer of the lung."
Dr. Ochner foresaw that the male population of the United States might be
decimated within fifty years by this type of cancer if cigarette-smoking
increases at its present rate. Within an hour of the opening of the Stock
Exchange that day big blocks of tobacco stocks were up for sale.
By the first of this year the horrid truth was out that the sale of cigarettes
in the first ten months of 1953 was off 2.1 per cent. It seems a negligible
fraction. But nothing gets to feel so normal as unrelieved luxury, and a
desperate tobacco executive reflected that if every American smoker used "one
cigarette less a day, our sales would drop by 5 per cent," which is to say three
million packs a day, or an annual loss of $255.5 millions.
The makers of filter-tip cigarettes came out celebrating the providential
insight that had led them to manufacture a cigarette that "filtered out" all
those by implication cancerous tars and fumes. Filtered cigarettes sold as many
in 1953 as they had sold in the preceding seven years.
The Institute of Industrial Medicine means to break down tobacco tars in an
attempt to discover which fraction caused the skin cancer in mice. This ambition
is evidently so beset with chemical and biological problems that it has taken
almost a year to build and set up the necessary equipment.
There is probably a great deal
more smoking among the undistinguished mass of women than careless observers
think, [Mr. E. Oliver Duerr told the Manchester Physical Health Culture
Society last night].
In Montrose, smoking among the women is only less general than among the men.
There you see them, in the evening and after their day's labours, sitting on the
upturned boats which they have helped to beach or on their own doorsteps pulling
at their short clay pipes with contentment written upon their brows.
Mr. Duerr would tell them that there is enough nicotine in their tobacco to
poison the whole of them if they would take the trouble to extract it and
swallow it as nicotine. The same thing has been said of carrots except that it
is arsenic in that vegetable; and yet everybody eats carrots.
Napoleon did not smoke, says Mr. Duerr, and neither does Lord Roberts. There are
50 diseases which spring from or are aggravated by smoking. The tobacco habit
damages the eyes, it reduces the temperature, it affects nutrition on both sides
of the skull, for while it impairs the brain it also causes the hair to fall
out, it makes otherwise honourable and human men selfish in the society of
non-smoking ladies and children, and it keeps the working classes from attending
public worship.
In short, it was set down that all tobacco should be reduced to a solution which
would be found useless for killing snakes — once you have caught them — and for
washing sheep. If smokers will not give it to the snakes or wash sheep with it,
but will obstinately smoke it, they are requested by Mr. Duerr and one of his
quoted authorities to inhale the smoke into their lungs and there retain it to
be absorbed.
If they will deprive the snakes of a most effectual poison and the sheep of a
superior wash, let them at least consume their own smoke and not pollute the
atmosphere in defiance of the rights of non-smoking man. If they would give the
snakes and the sheep their due but feel unable to make the sacrifice let them,
Mr. Duerr advised, give up breakfast and supper, let them give up tea and
coffee, and soon they will give up all their bad habits naturally and without
conscious effort.
To frighten these young smokers Mr. Duerr exhibited a book called "The Cigarette
Smoker," which has on its cover the picture of a skull and crossbones
constructed of cigarettes, and he gave a number of awful examples which only an
American doctor with a book in his mind could discover.
The
sixty-third annual meeting of the Lancashire and Cheshire Branch of the British
Medical Association was held at the Bolton Town Hall yesterday.
In a paper on cigarette smoking and carbonic oxide poisoning, Dr. J. Hilton
Thompson advanced a new theory. By some, the paper on cigarettes had been
condemned as injurious, while others looked with suspicion upon the metals used
in the lettering, and suggested copper poisoning. None of the explanations
advanced appeared to him to be satisfactory. In considering this question it was
necessary to remember there were two kinds of smoking — by simply drawing the
smoke into the mouth and then expelling it, and smoking in which the smoke was
inhaled into the lungs and then expelled as a thin diffused cloud.
The first mode was the usual one adopted by pipe and cigar smokers, and when
they considered the enormous number of people in all ranks of life who indulged
in these luxuries without apparent detriment, they felt that a moderate
indulgence in this kind of smoking was not to be looked upon as being injurious
to health. The inhalation of smoke was entirely con fined to cigarette smoking,
and it was amongst this class that one found the deleterious consequences.
Dr. Thompson gave the results of extensive experiments in burning tobacco by
pipe, cigar, and cigarette, and showed the presence of carbonic oxide in tobacco
smoke. As the blood had an affinity for carbonic oxide 300 times greater than it
had for oxygen there was sufficient in cigarette smoke to do an immense amount
of injury if inhaled in sufficient quantities.
The Doctor, continuing, turned his attention to cigarette smokers, and spoke of
the habitual inhalers as being slaves to the habit, as having a peculiar
anaemic, earthy complexion, in some cases laryngitis being produced. They had a
disinclination to work, and appeared not to have much mental or physical vigour.
After referring to the consequences of inhaling carbonic oxide poison, the
speaker showed how an indulgence in cigarette smoking during a student's college
career might alter the whole course from a success to a failure.
Those of mature age indulging in cigarette smoking, probably beyond making
themselves less fit and less inclined for work, would not be affected to any
great extent. The strong opinion held by the public concerning the injurious
effects of this habit was justified, and the American people who enacted laws to
remedy the evils to the young smokers had a good deal more wisdom than many gave
them credit for at the time.
