The Continuing Tobacco War: State and Local Tobacco Control in Washington

• Publication year: 2000
• Citation: Vol. 23 No. 03

SEATTLE UNIVERSITY LAW REVIEWVolume 23, No. 4SPRING 2000

The Continuing Tobacco War: State and Local Tobacco Control in Washington

Alan E. Scott(fn*)

I. Introduction

Cigarette smoking is the number one cause of preventable death in the United States.(fn1) It kills more people annually than cocaine, alcohol, heroin, fire, suicide, homicide, AIDS, and auto accidents combined.(fn2) The negative health effects of second-hand smoke, also known as environmental tobacco smoke (ETS), are also well documented.(fn3) Eighty-two percent of adult smokers began smoking before they were eighteen.(fn4)

Yet despite its enormous toll on the public health and the large number of underage smokers, tobacco products continue to enjoy relative immunity from regulation. This immunity seems to stem from the tobacco industry's vast financial resources, aggressive opposition to all forms of regulation, and unparalleled intrusion into the political process.(fn5) Because of the tobacco industry's influence over federal and state legislators, it is extremely difficult to pass effective tobacco control regulation at federal and state levels.(fn6) Only recently, with the Master Settlement Agreement (MSA) between the attorneys general of forty-six states and the major tobacco manufacturers, has the industry faced any substantial tobacco control measures.(fn7)

While it is a commonly-held perception that the war against tobacco ended after this historic settlement agreement, this is not the case. Tobacco regulation continues on at the state and local levels. Furthermore, because the MSA did not adequately address several key issues and completely neglected others, such as youth access and protection of nonsmokers from ETS, there is plenty of room for state and local governments to step in and address this vexing health problem.

This Article examines Washington's exemplary tobacco control efforts in the context of the larger, historical struggle to regulate tobacco. The Article begins in Part II with a brief description of the history of tobacco regulation in the United States. Part III examines the Master Settlement Agreement and its weaknesses. Part IV discusses the preference for local government regulation and the obstacles encountered. Part V examines the scope of legal authority of Washington's local governments to enact tobacco control measures, and Part VI describes Washington's tobacco control measures and the interplay between local, state, and federal laws.

II. A Brief History of Tobacco Regulation

Tobacco has a long and colorful history in the United States. Tobacco was used by the original Native Americans, was quickly adopted and spread by European explorers, and subsequently became a staple crop of the southern colonies.(fn8) Tobacco was used in various forms, including snuff, pipes, cigars, cigarettes, and chewing tobacco.(fn9) In the earlier part of this century as much as fifty percent of the U.S. population used tobacco products.(fn10) Cigarettes became the most common form of tobacco because of their low cost, convenience, and quick nicotine high.(fn11) Early attempts to discourage tobacco use, based on moral grounds and anecdotal scientific evidence, were unsuccessful.(fn12) Not until the 1940s and 50s did the rising incidence of lung cancer cause researchers to seriously question the health risks of tobacco use.(fn13)

In 1953, as a result of new research indicating the health hazards of tobacco use, the major tobacco executives met to formulate a strategy to address the potentially damaging consequences to the tobacco industry.(fn14) Consequently, in 1954, the tobacco industry paid for full-page advertisements entitled "A Frank Statement to Cigarette Smokers. " These advertisements appeared in hundreds of U.S. newspapers and promised to safeguard the health of smokers, and announced the creation of the Tobacco Research Institute Committee (TIRC) to promote disinterested research into the health consequences of smok-ing.(fn15)

Although the Federal Trade Commission (FTC) had taken some early steps to regulate cigarette advertising,(fn16) it was not until 1964, with the publication of the first Surgeon General's Report on Smoking and Health, that the tide began to turn against the tobacco industry.(fn17) The Surgeon General's Report announced a clear causal link between tobacco smoking and some forms of cancer.(fn18) In response, Congress passed the Federal Cigarette Labeling and Advertising Act (FCLAA),(fn19) although tobacco lobbyists had some influence over the final legislation.(fn20) The FCLAA requires the now familiar warning on the side of every cigarette package.(fn21) However, in a perverse way, the FCLAA has protected the tobacco industry by preempting lawsuits based on inadequate warnings(fn22) and preempting additional restrictions on advertising or promotion that are "based on smoking and health."(fn23)

Since the 1950s individuals have filed private lawsuits against the tobacco industry for health-related claims.(fn24) The industry has always been able to defeat them by financially overwhelming its opponents and using a freedom-of-choice argument that has resonated with jurors.(fn25) In the 1990s new legal strategies evolved to level the playing field, including class-action suits and third-party medical reimbursement claims.(fn26) Perhaps the most damaging new weapon the plaintiffs' lawyers had was the availability of new internal tobacco company documents that came to light through previous litigation and tobacco-industry whistleblowers.(fn27) These documents revealed that the tobacco companies had been aware of the detrimental health effects of smoking since at least 1953, had suppressed the results of internal research, and had deliberately attempted to create doubt and controversy about the health effects of smoking in the minds of the American public.(fn28) In addition, in contrast to congressional testimony by tobacco executives in 1994, the internal documents showed the companies were well aware of the addictive nature of nicotine and had deliberately engaged in manipulation of nicotine levels in their products.(fn29)

As part of this new wave of lawsuits, in 1994, Michael Moore, Attorney General for Mississippi, filed suit against the industry seeking to reclaim medical expenses his state had spent on tobacco-related illnesses.(fn30) Mississippi was soon followed by forty-one other states. Facing potentially bankrupting liability, the tobacco industry considered settlement. In June 1997 a "global settlement" was proposed that included regulation of tobacco products by the Food and Drug Administration (FDA) and industry immunity from private lawsuits, terms which required congressional approval. Congress considered various versions of the settlement,(fn31) but, when the terms became unfavorable, the tobacco industry withdrew its support and engaged in heavy lobbying, killing the settlement proposal in 1998.(fn32) After the federal proposal was defeated, state attorneys general continued to meet with tobacco industry representatives to discuss a less comprehensive settlement. In November 1998 the attorneys general and the major tobacco manufacturers(fn33) announced the Master Settlement Agreement (MSA), in which the tobacco industry agreed to pay $206 billion to the states as compensation for their Medicaid expenses and agreed to other tobacco control measures.(fn34)

While the attorneys general suits were proceeding, the Food and Drug Administration (FDA) decided it should regulate cigarettes and smokeless tobacco as "nicotine delivery devices."(fn35) In 1996 the FDA promulgated advertising and youth access restrictions, which were promptly challenged by the major tobacco manufacturers.(fn36) The district court upheld the FDA's authority to regulate tobacco products, but concluded it had no authority to regulate advertising.(fn37) On appeal, the Fourth Circuit ruled the FDA had exceeded its authority because Congress never intended to give the FDA jurisdiction over tobacco products.(fn38) Recently, the U.S. Supreme Court heard the case.(fn39) Justice Sandra Day O'Connor, writing for a 5-4 majority, acknowledged the health threat posed by tobacco products, especially to children and adolescents, but concluded, "it is plain that Congress has not given the FDA the authority that it seeks to exercise here."(fn40)

Additionally, the Department of Justice (DOJ) filed a civil lawsuit last year against the tobacco industry.(fn41) The suit alleges a longstanding conspiracy to defraud and mislead the American public about the health effects of smoking, and seeks to recover the billions of dollars the federal government spends each year on smoking-related health care costs.(fn42)

Although the FDA case is over, tobacco control proponents carefully watch the DOJ suit and the numerous private lawsuits that continue to be filed.(fn43) These cases may very well result in new federal tobacco laws. In the meantime, however, states and their political subdivisions can take the initiative to legislate in the areas not adequately covered by the MSA.

III. The Provisions of the MSA

While the Master Settlement Agreement is a positive step in the regulation of tobacco, much more can be done, especially in the areas of access to tobacco products by minors and environmental tobacco smoke (ETS).(fn44) Because the agreement was a scaled-down version of the proposed 1997...