Big Tobacco is positioning itself above the law—forever—by paying-off Big Government.  Big Tobacco is limiting its fiscal losses—forever—by burdening smokers and taxpayers with its huge liability for America’s deadliest drug addiction.  We must stop Big Tobacco.

This is the essence of the Master Settlement Agreement—the “MSA”—between Big Tobacco and the state governments, including Pennsylvania.  Although they have escaped public debate until now, the above realizations have animated my litigation against its implementation.  I want to fix the MSA, not kill it.

The first four settling states (Mississippi, Florida, Texas and Minnesota) received twice as much as Pennsylvanians would be reimbursed per capita for Medicaid-related expenses.  And the first four settling states were not encumbered with any responsibility to immunize Big Tobacco from future lawsuits.  Pennsylvanians deserve no less.

Indemnification

Read the MSA; it’s at the Web Site of the National Association of Attorneys General [“naag.org”].  It defines “Releasing Parties” as the Commonwealth of Pennsylvania and its political subdivisions plus, potentially, “persons or entities acting in a parens patriae, sovereign, quasi-sovereign, private attorney general, qui tam, taxpayer, or any other capacity.”   The Attorney General reassures us that he doesn’t have the power to “preclude any Pennsylvanian from suing any defendant.”  I merely want him to so-stipulate this sentence, mandating Big Tobacco concur with his intent and interpretation.

This past spring, I sued Philip Morris because it paid for billboard advertising that was expressly banned by the MSA; as anticipated, Big Tobacco is trying to have my suit dismissed by invoking the MSA’s indemnification clause.  This contradicts unambiguous language in the MSA, but the Attorney General has remained silent.  He has failed to force Big Tobacco to comply with the MSA, and he has failed to condemn Big Tobacco for abuse of the MSA’s immunity protections.
 
 
 
 
 
 

Offset Provision

And read how the MSA mandates that a case that yields a  “settlement or stipulated judgment shall give rise to a continuing offset. . .against the full amount of such original participating manufacturers’ share. . .on a dollar-for-dollar basis.”  The Attorney General reassures us this wouldn’t apply to individual lawsuits, only to Medicaid-related causes of action which constituted the reason the original suit was filed.  Again, I want him to      so-stipulate, and I want Big Tobacco to be bound by this clarification.

In Oregon, Philip Morris has invoked the offset to avoid paying punitive damages derived directly from a lawsuit filed by an individual with lung cancer. This contradicts unambiguous language in the MSA, but our Attorney General has again remained silent.  He has failed to condemn Big Tobacco for abuse of the MSA’s offset provision.

Stipulation

That is the core of what I have sought during this year-long legal battle.  With all due respect, reassurances from the Attorney General are meaningless unless they receive concurrence from Big Tobacco.  Both settling parties must prospectively stipulate them, now, lest they be corrupted and abrogated, later.  Lip-service won’t suffice.

By “running interference” for Big Tobacco—also eerily silent throughout this debate— the Attorney General contravenes sound public health policy.  By creating a perpetual, incestuous relationship between Big Tobacco and Big Government, the Attorney General sculpts a dangerous precedent for other industries that will now clamor for comparable legal protections (from all three branches of government).

Instead, he and the Governor should seek to “detoxify” smokers and to “detaxify” governments, for both have grown far too dependent on tobacco.  Thus, this MSA isn’t a “good first step” towards achieving meaningful tobacco control; rather, it threatens         to become “the last word” in public health.

Stealth Immunity

Those who have clamored for me to capitulate have failed to address these concerns.    Big Tobacco is all-business, and its clever MSA has successfully mesmerized everyone with the immediate prospect of receiving blood-money in the billions.  And last week, intense pressure was initiated to deliver a judicial/legislative “one-two punch” intended to complete the Attorney General’s power-grab, depriving citizens of any right to prod him if he chooses (as he did in the billboard case) not to enforce the MSA against Big Tobacco.

Big Tobacco insists vague language blocking public interest lawsuits cannot be severed from the MSA, and it wants the ambiguous definition of “Releasing Parties” to be enacted through House Bill 445, currently before the Pennsylvania House Judiciary Committee.  The latter signals legislative intent—not withstanding the Attorney General’s reassurances to the contrary—providing precedent for future use by Big Tobacco. Here, immunity for future crimes is unqualified vis-à-vis whether the Attorney General is empowered to grant it.  Thus, passage of this legislation could have the effect of giving him that authority.
 

Although introductory language is generally not formally adopted as statute, this could occur due to how “Section 2.  Declaration of Policy” has been drafted.  The key excerpt follows:  “The General Assembly finds and declares as follows: . . .The MSA obligates these manufacturers, in return for a release of past, present and certain future claims against them as described therein, to do the following. . . .”

This is how Big Tobacco strips Big Government of any motivation to enforce the MSA.   The MSA would reduce the ability to fine Big Tobacco for violating the MSA into a lame exercise; money would merely be removed from one pocket and placed into another.  Society’s ability to enforce the law would be rendered impotent when confronted with “Public Health Enemy #1.”

Modest Counter-Proposal

An additional reason to continue litigating has emerged during recent months.  Although  public officials have pledged to devote MSA funds to tobacco control, neither General Fisher nor Governor Ridge has agreed to follow Centers for Disease Control guidelines.  Were some legislators to prevail, these monies could be spent on pet projects ranging from beautifying the Capitol Building to enhancing Special Education.  And were the hospitals and cancer centers to get their way, treatment and research programs would overshadow cessation and prevention efforts.

Therefore, as part of a settlement, I would ask   Pennsylvania to codify its commitment to spend MSA monies to reduce the need for them to be spent in the future, that is, to treat the tobacco epidemic.  We must stop children from starting to use cigarettes and chew; we must help adults stop smoking and spitting.

Many actions would not require prior receipt of MSA monies.  The Attorney General should enforce laws prohibiting illegal underage sales to children, and he should ensure all cigarette vending machines and floor displays are out of their reach.  (Inanimate objects obviously cannot discern their users’ ages.)  Purchases by minors are running rampant.

That’s why public interest litigation mustn’t be stifled, for it may be needed to prod those entrusted with protecting the welfare of the citizenry.  Big Tobacco mustn’t be given a tool—the MSA—that could insulate it from government or popular oversight, allowing it to continue to conduct its lethal business as usual.  Otherwise, we know Big Tobacco would continue—inexorably—to “push limits,” much as does a “terrible-twos” baby.

Special Legal Protections

Under the MSA, “ordinary business activities” are to be exempt from challenge.  Thus, unless it is amended, taxpayers will not be confident they could subsequently petition government to prosecute violations of the MSA or to gain restrictions on Big Tobacco that can now only be envisioned, rather than detailed.  We must ensure billboard ads remain banned (per the MSA), and we must retain the ability to seek appropriate restrictions on vending machines and on internet promotion and sales (as problems arise).

General Fisher would issue Big Tobacco a blank check, drawn from the account of public interest, never to mature, impossible to stop.  Unprincipled “banking” must be supplanted by long-term capital investment in a healthy electorate that refuses to sell its future earnings—its young—to the Tobacco Cartel.

Other facets of the MSA are problematic, but the pivotal issue is that it snuffs-out any effort to improve it.  Except for the government’s health-related expenses that constituted the original cause-of-action, there should be no immunity for any future harm and fraud, and there should be no offset for future unspecified damages.  This was a class action that must be fair, reasonable and equitable to Pennsylvania’s youth.  Presently, it isn’t.

I call upon Governor Ridge and General Fisher to confront the major preventable cause of death and disability. I ask that they work with anti-tobacco activists to resolve these unprecedented concerns, for they carry import both in the realm of tobacco control and in the world of government regulation.  Such a commitment will yield wise choices when deciding how to spend the windfall.  Pennsylvania will ultimately become a national model.

My alarm is reminiscent of Cassandra’s warning when the Greeks built the Trojan Horse:  “Beware of Big Tobacco Bearing Gifts!”