http://www.phillynews.com/inquirer/2000/Mar/25/opinion/SKLAROFF25.htm

The Supreme Court's decision has supporters and opponents of FDA regulation fuming.

Smoke is rising from the tobacco ruling

By Robert B. Sklaroff

Big Tobacco's Supreme Court victory over the Food and Drug Administration reminds us exactly why the settlement between the states and Big Tobacco is one big, stinking smoke screen.

Now that the Court has erred - conservative Reagan-Bush appointees accounted for the narrow 5-4 majority - all we have is
the settlement, and that's not much. It's essentially a private deal, the largest civil-litigation settlement of all time, that effectively bars the public from legal redress should Big Tobacco get out of line. Meanwhile, the tobacco epidemic rages, and the World Health Organization attempts to mobilize governments to control the multinational corporations that fuel Public Health Enemy Number One.

States slaver for a sliver of the agreement payoff. Attorneys general such as Pennsylvania's Mike Fisher - while zealously
claiming sole authority - can't decide how to enforce a pact they wrote only a year ago.

When Big Tobacco has crassly violated the agreement - through billboard advertising, youth-oriented marketing and
indiscriminate mail-order distribution - Fisher has been ineffective when pressured to act. Why? The agreement defines only its signatories as "intended beneficiaries." If Big Tobacco is naughty, the public may not sue; only the signatories, who never will.

How come? Because there's an "offset clause" in the agreement. It's a beauty. Any fines Big Tobacco runs up are deductible - dollar for dollar - from its annual allocated payments to the states. So states are robbed of the incentive to sue if Big Tobacco misbehaves. Suppose Pennsylvania sued Big Tobacco and won a $1 billion fine. Then Big Tobacco could just slice $1 billion from its next year's payment to us. A terrible beauty is born!

These defects in the agreement were diagnosed a year ago and dutifully reported in The Inquirer and elsewhere. Instead of
addressing them, however, the courts have preferred to deny legal standing to challengers.

Politicians, meanwhile, prefer to ponder spending the tobacco windfall. As I testified last week before the House
Appropriations Committee, they have had to be reminded not to divert funding from Medicaid and tobacco control initiatives.

They forget the commonwealth's lawsuit was filed to recoup the fiscal impact of tobacco-related illnesses. They ignore the good advice of the Centers for Disease Control and Prevention: that 25 percent of these monies go to prevention and cessation programs. The tug-of-war continues as the public health community - eager for any support - maintains its silence.

Big Tobacco got its own windfall through the agreement, anyway. It will pay far less than the true economic toll taken by its
products.

Attorney General Fisher considers me "dangerous" because I warn that Big Government's incestuous relationship with Big
Tobacco grants the latter respectability and predictability, preserving its position in American society. Meanwhile, smoking
increases, both in American high schools and in the Third World.

Prohibition won't work, but ensuring that cigarette prices cover their medical consequences will. Pontification won't work, but protecting your right to litigate will. Procrastination won't work, but skewering politicians who protect Big Tobacco will.

And that's why the agreement wasn't a good first step; rather, it threatens to become the last word.
 

Robert B. Sklaroff is an oncologist and hematologist in Montgomery County.

© 2000 Philadelphia Newspapers Inc.