Pubdate: Wednesday, 25 Feb 1998 Source: Wall Street Journal Author: Holman W. Jenkins Jr. Section: Business World Contact: http://www.wsj.com/ TIME TO GROW UP ABOUT TOBACCO It has come to be accepted across the land that tobacco executives are evil and kept us in the dark about cigarettes. In a collective act of memory repression, we have convinced ourselves that we didn't know smoking was dangerous. Mother said it was dangerous. Doctor said it was dangerous. The surgeon general said it was dangerous. After 1966, the pack even said it was dangerous. But we were waiting for the tobacco industry to say it was dangerous. Way back in 1897, the Tennessee Supreme Court decreed that the state legislature didn't have to prove that smoking was dangerous to ban cigarettes, because everybody knew it was "wholly noxious and deleterious to health." We've been here before. Our basic dilemma has been an unwillingness to decide between banning tobacco or saying that smokers smoke at their own risk. If Congress intends to do more than just raise taxes on smokers, it will have to wrestle with this dilemma. In legislating for the industry, it would also be legislating for the 45 million people who use its products. It is time for Congress to get serious. It is not going to outlaw tobacco. That would be a boon to organized crime. It's not going to authorize the FDA to put the country on cold turkey by ratcheting down the nicotine level, for that would have the same effect. It won't impose a tax hike large enough to discourage smoking in a serious way President Clinton has suggested phasing in a $1.50-a-pack hike over five years. He couldn't have come up with a better plan if his real goal was to desensitize smokers to higher prices in order to keep government revenues up. For anybody truly interested in doing something novel and creative about smoking, that leaves the issues of liability and advertising. It used to be that the tobacco companies, while selling a perfectly legal product, ran a gauntlet of legal jeopardy if they ever admitted to its inherent dangers. One of the many wonders is that the industry and its critics have changed places. Now the tobacco industry can tell the truth. Now the critics dissemble. This ought to be accounted progress, and perhaps it is all the progress we really need. Until the early 1960s, cigarette companies covertly acknowledged the medical evidence and competed in terms of "mildness" and other coded expressions. Filters were invented. Nicotine and tar content came down. Cigarettes were becoming safer. Then Washington granted the fig Leaf of the surgeon general's warning just as the tort system was developing expansive notions of "strict liability." The industry hunkered down in the stonewall position and made a pact with itself never to acknowledge the cancer risk within earshot of the public. This is the real significance of all those tobacco research documents stamped "attorney client-privilege," and of Jeffrey Wigand's odyssey. Mr. Wigand was the tobacco scientist who turned "whistle blower" because his employer, Brown & Williamson, was conflicted in its corporate soul about pursuing a safer cigarette. It turns out B&W did pursue one, in a muted way, and now finds itself under suspicion by the Justice Department in a case involving the unlicensed export of tobacco seeds. The experimental strain was designed to yield a larger amount of nicotine in proportion to other, more noxious ingredients-i.e., a safer tobacco. All this poses a dilemma for honest public health advocates, of which there are a few sprinkled among the hypocrites. People smoke because they enjoy nicotine and become addicted to it. Call it a "drug"; nicotine long ago escaped regulation because it does not impair judgment or behavior, and the risks of smoking are cumulative over time. Nothing has really changed. Are the public health advocates prepared to leave people the freedom to become nicotine addicts, a freedom that humans are long used to? In theory liberals have learned their lesson about social engineering, and in theory conservatives didn't need to. One of the most admired figures in corporate life, Coke's Roberto Goizueta, died last year of complications from lung cancer after a lifetime of smoking. He was not a man lacking in willpower or intelligence. Not everyone ranks smoke-free lungs at the same place in the hierarchy of values. Nor is "addiction theory" a trump. Jean O'Connor, one of the antismoking lobby's star plaintiffs, smoked three packs a day and never tried to quit, though she well understood the risks. Then her doctor refused to perform a tummy tuck until she stopped, and she quit on the first try. In truth, the antismoking crusade demonstrates the autonomy of the political process, for only after smoking fell by half was it decreed a "crisis." On one side are the trial lawyers: Having built up their bankroll on breast implants and as asbestos, a handful of firms began laying down seed money to go after tobacco. Their victories have not come in court but in the halls of state government, where legally dubious but politically potent theories of Medicaid liability brought the in dustry to the table. We could elaborate, but one example will suffice: Ann Richards, former Democratic governor of Texas. In office she collected $400,000 in campaign contributions from trial lawyer Walter Umphrey. As a lobbyist she has pushed his agenda in meetings at the White House and Congress. Mr. Umphrey is one of five lawyers slated to split a $2.3 billion fee pot in the Texas settlement. He also played venture capitalist to the Florida case. He did no work, and will collect a $20 million return on his investment. Yet money grubbing also happens to coincide with a cultural moment, and it's no accident that the lawyers are all Southerners and exude a strong populist dudgeon. The single biggest indicator of state laws against gambling is a high proportion of Baptists in the population. Both liquor. and cigarette prohibition early in this century were driven by anti-immigrant, antiurban sentiments of the Protestant middle class. Today's antismoking fervor may partake more of the moral revivalism of the heartland than the self-perfection obsessions of the cultural elite. That's why both Republicans and Democrats think there are votes in "punishing" the cigarette companies. But there is also a saying that the most damaging lie is a problem poorly stated. Ninety years ago, Congress enacted Prohibition knowing the folly of it but unable to resist a cause of invidious political correctness. Now that the cigarette industry has admitted the deficiencies of its product, the legislature could do worse than to sit back and let nature take its course.