This is the essence of the Master Settlement Agreement 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 Agreement, not kill it.  It is incorrect to characterize my criticism as "not having gotten everything I want."  Rather, by indemnifying Big Tobacco against future lawsuits, the Agreement makes it virtually impossible to improve the Public Health environment, such as to ban placement of cigarette vending machines where children can use them.

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.

In addition, none of the spending proposals in Pennsylvania issued by any Harrisburg politician is consistent with the original intent of the lawsuit that led to the Agreement.  The Complaint was filed on April 23, 1997 to seek reimbursement for Medicaid expenses caused by tobacco-related illnesses.  Yet, no one has proposed either that the money be targeted to Medicaid patients or that we adhere to the tobacco control guidelines issued by the Centers for Disease Control and Prevention.

In the process, we could exponentially short-change our youth, the class on behalf of which the Attorney General filed suit.  Big Tobacco will soon be forced to post a bond to appeal its conviction in Florida that it (among other things) spiked cigarettes to addict its customers. Wall Street analysts have calculated this lump-sum, intended to recompense tobacco-related illnesses in Florida, will be $300 billion. In contrast, this year, Pennsylvania is slated to receive only $400 million.

Furthermore, Big Tobacco is already violating the Agreement and the Attorney General has done nothing to investigate why.  He admitted that Wawa reneged on its Agreement with him when it reinitiated its billboard advertising campaign, but he didn't try to sanction the company--Philip Morris--that had funded this "Manufacturer Sponsored Promotion" for Marlboro.

Also, Philip Morris is soliciting mail orders for Virginia Slims (without the need to prove one's age) and is advertising Salem to black youth.  I submitted these data to the Attorney General weeks ago, but he has not bothered even to acknowledge their receipt.  Now, R. J. Reynolds is promoting a Winston Blues Concert series.

All of these actions violate Agreement mandates against youth advertising and promotion, as well as publicly-issued corporate policies.

Why has the Attorney General run interference for Big Tobacco?  Because even if he were to sue and win, there would be a "zero-sum" result.  Any fiscal penalty would be "offset" dollar-for-dollar against the annual allocated payment to the Commonwealth.  Big Tobacco would be capitated.

To compound matters, the Agreement indemnifies Big Tobacco from anyone other than the Attorney General from pursuing such a suit.  The Attorney General refuses to delete this clause, despite the fact that he professes not to have the ability to exercise such power.  The trouble is, he has endorsed passage of House Bill 445 which could grant him the ability to snuff-out such public interest litigation.

Doctors try to treat the causes of diseases.  The major preventable cause of death worldwide is tobacco, and its use is growing.  The major way Big Tobacco is tamed is through litigation.  And the Agreement blocks law suits.  An unbridled Big Tobacco looms.

Why have professional organizations, public health charities and public officials (of both political parties) remained deafeningly silent?  In arguing we should "move on," they are trying to forget that this Blood Money--that they covet for pet-projects--can only be generated if people keep smoking.

I currently am pursuing three "threads" of active litigation.  One is intended to block implementation of the Agreement, another is intended to punish Philip Morris for having violated the Agreement, and a third is intended to force the Attorney General to enforce the Agreement.

I feel anti-tobacco activists such as myself have "standing" because the latter two efforts constitute a legally enforceable interest, representing active cases and controversies that are currently ripe for adjudication and that are directly, substantially and immediately related to the Public Health.  I want the courts to weigh the input of scientists and ethicists before they allow the Agreement to be implemented.

Trying to break-up the incestuous relationship between Big Tobacco and Big Government--I have been told--is futile.  But there will never be another chance to thwart this dangerous, precedent-setting sell-out.  Anyone with lingering doubts is encouraged to read the Agreement (http://www.naag.org) and my detailed commentary thereupon (http://members.home.net/rsklaroff/homepage.html).

This is not an effort to achieve Prohibition, to blame society's ills on tobacco, or to satirize government and the judiciary.  Clearly, government and smokers share "contributory negligence."  Yet, no proponent of the Agreement has publicly defended these clauses, and no court has analyzed their constitutionality.  When I filed our petition a year ago--along with Messrs. Jeff Barg and Bill Godshall and subsequently on behalf of thirteen organizations--never did I anticipate such a surreal outcome could conceivably occur.

Big Tobacco mustn't be given a tool-the Agreement-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.  In the aggregate, my suits are intended to "detoxify" the public and "detaxify" the government.  Big Government mustn't be permitted to let Big Tobacco ignore its culpability for the global epidemic of tobacco-related disability and death.

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

Robert B. Sklaroff, MD, is a Montgomery County Medical Oncologist and Hematologist, and he serves as Regional Coordinator of the Federation of Physicians and Dentists.

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