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draft settlement

Tobacco Desperate for a Deal

By C. Everett Koop and David Kessler

Friday, November 20, 1998; Page A29

Big Tobacco once again has met with several state attorneys general behind closed doors. The public, especially public health experts, once again was specifically excluded from complicated negotiations. The public once again has been presented with the details of a proposed tobacco "settlement." And we are expected to believe that the tobacco industry is not once again up to its old tricks?

After failing to buy special protections from Congress, Big Tobacco is back to courting the attorneys general. Believing that anyone will sell his virtue if the price is right, the highly profitable tobacco industry is offering several states billions of dollars to gain protection and privileges that no honest business would be granted. Big tobacco is desperate for a deal, but why?

The tobacco industry wants to limit the public's knowledge of its chicanery. Each lawsuit that actually goes to trial means that more secret documents become public, shedding more light on what this greedy, lying industry does to the nation's health. In addition, the industry knows that when increasingly incriminating information becomes part of the public domain, other states' chances of getting more money become better. Any attorneys general who decide to reject the settlement and push on with their cases in court are likely to not only recoup more of their states' money but also make more of big tobacco's misdeeds public.

We wonder why no one stops to think about why Big Tobacco has so much money. For decades the industry has bought special privileges and protections that have allowed it to charge dearly for a cheap product. Profits are huge because costs are transferred to the public. Other companies have to pay for damages from defective products, even when defects were not intended, but Big Tobacco has the taxpayer paying. You pay more than $2 for every $1 Big Tobacco makes.

The desire of all negotiating parties for complete secrecy is a clear sign that the public will suffer substantial losses in the terms, just as it would have under the June 20, 1997, terms. Imagine the public and media outrage if Congress suddenly decided that all legislative hearings were now to be conducted in secret. The industry wants to surprise the public with only one day of headlines so that a complete, thoughtful, and sound review is not feasible. Apparently, the negotiating parties are going to ignore state Administrative Procedures Acts requiring public review and comment of usually at least 30 to 60 days before adoption of major policies. The blinding amount of money offered, even though it represents not even half of what is needed for just compensation, is supposed to hide this obligation.

The parties involved made a deal without public review of compromises that the attorneys general as elected officials made for the citizens of their state. And those attorneys general who have not already signed on have only a matter of days to make this decision, a deadline imposed by the tobacco industry because it knows that if there is proper public inspection and debate on the settlement the public will be outraged.

And what is the industry proposing? Cents on the dollar, compared with states that settled their cases individually; no provision for federal regulation of an addictive drug; stunningly weak restrictions on advertising; increased roadblocks to the federal government to increase cigarette taxes; improper immunity for an industry that still has not admitted its misdeeds.

Big Tobacco should not be protected from suits by aggrieved individual citizens, groups and organizations. Full disclosure must continue. Liability should not be capped. Community laws should not be preempted by either states or federal law, nor co-opted by an illegitimate, closed-door agreement between attorneys general and Big Tobacco.

Some have called this a "milestone" in the war against tobacco, implying that Congress will take up the issue again. But this agreement would in fact mark one of the last miles in this long war. The settlement sends a signal to Congress that the states accept the industry's group settlement as acceptable punishment, thereby stunting further federal legislation. And the more states accept the settlement, the stronger that destructive signal will be.

Any attorney general who buys into the industry's lies is changing the health of Americans for the worse. This settlement might be quick, but it is no fix.

C. Everett Koop was surgeon general of the United States from 1981 to 1989. David Kessler was commissioner of the Food and Drug Administration from 1990 to 1997.

Source: 1998 The Washington Post Company