The Topsy-Turvy World of Tobacco
by Rick Kropp
December 18, 2001
As the tragic events of September 11th, our subsequent military action in Afghanistan, and ongoing search and destroy mission against known terrorists have occupied the news over the three months, long-standing domestic issues continue to fly below the media's radar screen. While news of anthrax exposures and deaths have been heavily, and properly, reported, other public health problems continue to get little attention by the media and public.
This is typical and not surprising, especially when it comes to news
stories about tobacco.
This is not to diminish the horrendous public health danger of HIV/AIDS, especially in some poor third world countries. But at least with HIV/AIDS, you don't have entire US industries and huge global-wide corporations spreading premature disease and death caused by tobacco use through the aggressive marketing and sales of their products.
And although the US government could be doing more to combat HIV/AIDS, at least the state and federal governments, many elected government officials and the US court system don't provide legislative and judicial barriers to preventing HIV/AIDS like they do in the case of tobacco.
Yes, governments, officials and the courts do block more effective and comprehensive prevention policies against tobacco use and addiction. At the same time, the local, state and federal governments, even after the states' huge financial settlement with the major cigarette companies in 1998, only pay for token and disproportionately miniscule tobacco prevention and cessation efforts. This amount is dramatically low when compared to the vast expenditures laid out each year by the tobacco companies and its allied advertising and retail industries on advertising, marketing, promotion, sponsorship, public relations, campaign contributions, which is mostly to Republicans, and aggressive lobbying and influence peddling at all levels of government and public policymaking.
When an average person thinks of governmental hypocrisy, some would say corruption, more often than not that person thinks of tobacco. There are layer after layer of examples of blatantly contradictory and hypocritical aspects of tobacco products and the tobacco industry. There are enough examples to make a reasonable person scream in anger, swear in disgust, or cry when remembering the sad consequences of 400,000 deaths per year related to tobacco use from an addiction that almost always starts in childhood.
However you react, it is all part of the topsy-turvy world of tobacco, where wrong is right, and bad is good. It sadly touches and taints our Constitution and Bill of Rights, especially the First Amendment, exposes the retail industry's unholy, incestuous, and largely secretive relationship with Big Tobacco, shows the blatantly anti-youth strategy of blaming, criminalizing and punishing the victims, exposes the outrageous and insulting notions of "smokers' rights" and "freedom of choice" regarding smoking, to name just some of the contradictory and hypocritical aspects of tobacco products and the tobacco industry.
Constitutionally Protected Tobacco Advertising
To start, one of the more bizarre and troubling examples is tobacco advertising being protected by the First Amendment. As you know, current legal precedents and recent rulings of the conservative majority on the Supreme Court have maintained tobacco advertising, legally known as "commercial speech", is constitutionally protected from government restrictions by the free speech and free press clauses of the First Amendment of the Bill of Rights.
This would make sense from a historical (and cynically humorous) point-of-view in remembering that James Madison, Thomas Jefferson and many of the other framers of the First Amendment and the freedom of speech and freedom of press clauses were tobacco farmers, and the fact that tobacco sales greatly helped finance our War of Independence. Also, a good historical and legal case has been made that the framers of the First Amendment intended the protection of a free press also applied to advertising.
Of course this position is aggressively advanced by the advertising industry, specifically the American Advertising Federation who sees the free press and free speech clauses protection of advertising, including tobacco advertising, as sacrosanct. This is a typical position among many academic scholars and expert practitioners of the First Amendment. In my review of their writings and through my e-mail communications with these pro- commercial speech and advertising zealots, I found many of them to be literal fanatics about the free speech clause of the First Amendment. They view it as untouchable and inviolable in a quasi-religious, doctrinaire and dogmatic sort of way. Sort of like the radical fundamentalists about Christianity and the Bible and Islam and the Koran. I love, honor and appreciate the First Amendment, but these persons devotion to it is sometimes unsettling.
And it is amazing that supposedly neutral academic-based First Amendment scholars with no love for the tobacco industry believe that there is absolutely no causal relationship between tobacco advertising and tobacco initiation, addiction and use. They completely ignore all the research and internal tobacco industry documents that verify this relationship. Few of them also accept the fact that tobacco advertising is at least partially targeted (and successfully) towards young people. And few of them believe in even the limited merits of tobacco ad bans or selective restrictions as part of a comprehensive tobacco control policy. It's like the tobacco control and tobacco research world doesn't exist for these First Amendment scholars and experts. They will only openly admit that tobacco use is a health hazard related to disease and death.
No attorney or First Amendment-commercial speech specialist from a tobacco law firm or conservative think tank will admit anything bad or harmful coming out of tobacco advertising. But I did find a few (very few) members of the advertising industry to cautiously and subtlety admit that voluntary, self-imposed restrictions on tobacco advertising would be a good thing in the name of public health, or at least to protect the health and safety of children. In fact, I found this same sentiment among a few point-of-purchase advertising firms several years ago (mid-1990's) when I was doing research on and advocacy against retail tobacco advertising.
As a great admirer of our country's founding principles and an advocate of free speech, I would like to believe if James Madison and the other framers of the Bill of Rights were alive today that they, as moral, compassionate and reasonable men, would abhor how the tobacco, retail and advertising industries have successfully used these First Amendment clauses to constitutionally protect tobacco marketing targeted at children and which induces kids to smoke and chew.
Yes, the sad fact is that not only is tobacco advertising constitutionally protected, but blatant tobacco advertising targeting kids purposely placed in locations near or at youth-gathering places such as schools, convenient stores, playgrounds, and candy and soda stores is also protected from government regulation by the First Amendment. And so are constitutionally protected cigarette ads placed at a child's eye view in stores no accident. In many cases, cigarette and spit tobacco advertising in retail outlets are placed at low levels -- out of the line of sight of adult customers but right at the eye level of young kids.
Placing cigarettes and other tobacco products near candy displays in stores is also done on purpose. Tobacco companies pay for such prominent and effective placements. These displays also promote impulse purchases, make cigarettes and other tobacco products visible to kids, and make purchases by kids easier. The tobacco companies pay enormous amounts to retailers to get their ads and brand-marked items placed and used at retail outlets frequented by kids.
And to add insult to injury, even though tobacco advertising is basically untruthful, deceitful, deceptive and misleading, at least according to published scientific research and internal tobacco industry documents, it remains legal and constitutionally protected.
On the other hand, it is an intriguing hypothetical concept that tobacco advertising may not be entitled to any First Amendment protection at all. And that it is, in fact, already illegal because it employs misleading, untruthful and deceptive methods; promotes unlawful and illegal acts (illegal sales to and purchases by minors); advertises products that cause addiction, disease, and death; and markets products that cause disease and death among non-smokers. Yet this intuitively sound concept appears to have no powerful champion to advocate its cause in the courts. For sure the tobacco lawyers would go to mat in this fight because it strikes at the Achilles heal of Big Tobacco.
What is important to understand is that over the last thirty years, the tobacco companies have had to face two paramount facts that seriously endanger their financial future and economic prominence in the US and world economies. The first fact is tobacco smoke or environmental tobacco smoke (ETS) causes disease and death among non-smokers, especially children and the elderly. The second fact is effective, widespread tobacco advertising, no matter its massive costs to the industry (over $8 billion a year according to the Federal Trade Commission), and especially at the retail level, is vital for the industry's survival. And let us not forget the huge vested financial interests of the advertising and retail industries in tobacco advertising.
Thus with all its many battles to fight, Big Tobacco has had to primarily focus on two areas of strategic importance: discrediting the scientific evidence on the health dangers of exposure to ETS; and ensuring government does not enact meaningful restrictions on tobacco advertising, especially at point-of-purchase aimed at young people.
The fight on ETS research credibility and disinformation is an interesting
saga involving the tobacco industry's clever and compelling yet deceptive
and dishonest counter-arguments tactics, along with the pseudo-science
produced by tobacco industry funded researchers and publicized by tobacco
industry front groups and smokers' rights groups.
These smokers' rights groups are not only a bit bizarre but also scary. It is unsettling being on their enemy's list and having my name, caricature and e-mails to them highlighted throughout their web pages of hate and pro-smoking dogma.
But moving away from the ETS issue and into the advertising arena, the tobacco, advertising and retail industries have been remarkably successful in legislatively blocking or watering down, and overturning in the courts any substantive tobacco marketing regulations, especially in retail stores, with the notable exception of bans on promotional self-service tobacco displays in retail stores.
The champions of these battles are the big law firm attorneys and First Amendment scholars working for the tobacco, advertising and retail industries (mainly convenience stores or c-stores and gas station mini-marts). These allied industries are included with the tobacco industry because they aid and abet the tobacco companies in their predatory marketing practices targeting young people.
Using the commercial speech concept, these big-time attorneys and First Amendment experts have brilliantly used the free speech and free press clauses to expand constitutional protection of commercial speech, including and especially tobacco advertising.
So here's the rub for me. These attorneys and constitutional scholars have been successful in making the case and convincing the courts, including the Supreme Court, that advertising of a product that causes addiction, disease and death is legal and protected by the First Amendment. And even though most everyone appears to oppose tobacco advertising aimed at children, this advertising is constitutionally protected. This is the contradiction that perplexes and troubles me.
But the more I learn about tobacco advertising and the First Amendment, increasingly my predicament became the classic (and troubling) liberal conflict of wanting strong government regulations of tobacco industry advertising, especially at the retail level, while at the same time not wanting to feel that I am, or to be accused of by responsible parties of trampling on the First Amendment and free speech and free press clauses.
The corporate players in this constitutional travesty reap tremendous financial benefits using (or some would say misusing) the First Amendment because it is in their economic self-interest to do so. In American capitalism and the global economy, it's survival of fittest (and the smartest, and most ruthless and most calculating). At the end of the day, the guys with the most toys (and money) win, and live to fight (and win) another day.
Let's see how this simple form of economic Darwinism works in this case. The tobacco industry wants its $8 billion a year advertising budget spent on saying and promoting things about its products that ensure the addiction of millions of new smokers and continued addiction of current smokers. It doesn't matter that this "commercial speech" spreads massive disease and death. But it does matter and is of primary importance that Big Tobacco receives guaranteed First Amendment protection for this $8 billion dollar expenditure, plus its production and manufacturing costs. The industry wants and needs a big and reliable return on its huge investment.
Ultimately, this entails making sure that state and federal courts and the Supreme Court agree with and support the industry's use of the First Amendment all the way down the line. Plus this includes not allowing socialist states like Massachusetts and California to interfere with maximizing profits and upsetting long-standing and tried-and-true strategies. And let's not forget this scheme also enables the tobacco industry to continue to get federal and state business tax deductions for its money spent on advertising.
The economic self-interest of the advertising industry is also protected by this use of the First Amendment. The advertising profession, in all its many forms, doesn't want anything to curb the financially lucrative business it gets from its old and reliable clients and customers in the tobacco industry. This also requires the advertising industry providing legal aid in Big Tobacco's court fights, including sound legal strategy and convincing legal briefs that pontificate eloquently about the sanctity of the First Amendment and its free speech and free press clauses. But once you get past all the legal mumbo-jumbo, it's really only about the lucrative ad fees and contracts that truly matter.
Retail Industry Shilling for Big Tobacco
Let's look closer at the retail industry, especially convenience stores (c-stores) and gas station mini-marts. According to Congressionally-mandated annual reports published by the Federal Trade Commission (FTC), most tobacco industry marketing expenditures each year are spent on one form or another of retail-level tobacco advertising and promotion in stores. To make matters even worse, tobacco retailers receive lucrative (and legal) financial pay-offs and other economic incentives from the tobacco companies in the form of promotional allowances, slotting fees and other merchandising benefits to heavily advertise, promote and sell tobacco products in their stores, with much of this tobacco marketing targeting young people.
Consequently, big chain tobacco retailers and their trade associations, like the National Association of Convenience Stores (known unofficially as the retail arm of the tobacco industry) and Southland 7-11, oppose any local, state or federal legislation that would restrict displaying, advertising and promoting tobacco products in their stores.
These and other tobacco retailers do not want anything to cut into their huge merchandising benefits, slotting and display fees, and promotional allowances they get from tobacco distributors and manufacturers. Cigarettes are c-stores and gas station mini-marts #1 sales category, so whatever the tobacco industry says and does is fine with them. After all remember (so you won't forget), different forms of retail-level advertising gets almost half of all the promotional, marketing and advertising expenses spent each year by the tobacco industry, that's around $4 billion a year. Likewise, the promotional allowances and other legal pay-offs dished out to retailers are the largest single and fastest growing category of annual tobacco industry expenditures. So the First Amendment definitely needs to protect the economic self-interest of tobacco retailers and sellers as well.
The unholy truth is that among the major contributing factors to youth tobacco experimentation, use and addiction are retail tobacco advertising and promotion, and easy youth access to tobacco products from stores. Hypocritically, individual and corporate owners of retail tobacco outlets, especially their industry trade associations, publicly state they support efforts to discourage underage tobacco consumption, as well as efforts to eliminate illegal tobacco sales to youth. However in spite of these claims, retail tobacco outlets have been and continue to be one of the leading sources of tobacco products to minors. Thus it is not surprising that most tobacco retailers, especially their industry trade groups, support policies and programs that limit tobacco sales enforcement efforts.
In addition to illegal tobacco sales to minors, retail tobacco outlets, especially c-stores, gas station mini-marts and liquor stores, contain the most widespread and persuasive forms of tobacco advertising and promotion, much of it youth-oriented. This point-of-sale tobacco advertising and promotion is very effective in glamorizing and communicating to young people strong retail level messages promoting tobacco consumption. Cigarette advertising in stores uses images rather than information to portray the attractiveness and function of smoking. These tobacco messages saturate the environment of many retail outlets with themes correlated with psychosocial factors that appeal to young people and current smokers. These environmental cues not only support the use of tobacco but also are also cleverly designed to promote impulse purchases by first-time tobacco users, including youth, women, ethnic minorities and low socioeconomic populations. Research shows these messages are reaching their targets.
Since the federal ban on tobacco advertising on television and radio in 1971 (really and technically a "voluntary" action "forced" on Big Tobacco by the federal government), the tobacco industry has shifted to increasingly non-media marketing efforts, especially in using retail advertising and promotion of its products. Since the ban on some tobacco billboards and other minor restrictions on tobacco advertising coming from the 1998 national master settlement agreement between the major tobacco companies and the states, industry spending on all forms of retail tobacco advertising as greatly accelerated. Tobacco advertising and promotions increased in c-stores and other retail stores after the billboard ban mandated by the national tobacco settlement took effect in April 1999, according to a University of Illinois at Chicago study released in July 2000.
Many c-stores, gas station mini-marts, small grocery stores and liquor stores are financially addicted to tobacco, meaning the sale, advertising and promotion of tobacco products. Tobacco products often are these outlets' number #1 sales category.
Because of this fact, many of these outlets, and their trade groups, have a very close, if not incestuous, relationship with the tobacco industry. Tobacco retailers and their trade groups have strong economic and political ties to the tobacco industry, very often acting as tobacco industry surrogates on the local, state and federal levels in opposing strong tobacco policies while pushing weak and ineffectual retail tobacco policies.
In Lorillard v. Reilly case last June, in which the Supreme Court's nullified the Massachusetts (and probably other state and local) laws restricting outdoor and retail tobacco advertising, in addition to the high court earlier overturning the US Food and Drug Administration's retail tobacco advertising regulations, it is now sadly left solely to Congress to enact legislation curbing youth-oriented retail tobacco marketing. Unfortunately the tobacco industry and its allies and surrogates, due to their huge campaign contributions, lobbying and political clout in Washington, can still effectively block any meaningful federal tobacco legislation.
And even when get federal tobacco legislation, it gets neutralized in
Merchant education is the most commonly used intervention strategy to reduce illegal tobacco sales to minors from retail stores. However, research generally shows that merchant education has a limited and transitory impact on reducing over-the-counter tobacco sales to minors.
Most tobacco control professionals and researchers believe merchant education is necessary but not sufficient by itself to significantly reduce tobacco sales to minors over the long term. Some merchant education programs have achieved substantial but incomplete reductions in over-the-counter sales to minors. However, these programs cannot sustain reductions without active enforcement or similarly strong interventions.
Although research indicates that merchant education alone has a limited and transitory impact, there is evidence that merchant education combined with active compliance checks with enforcement of tobacco sales laws, including penalties for violators, together with community interventions, produce significant, long term reductions in illegal over-the-counter tobacco sales to minors.
Punishing Children to Protect Them
In the Tobacco Wars, retailer groups clearly want federal protection to continue their long-standing aggressive tobacco sales and marketing practices, and to maintain their strong ties to the tobacco industry. Instead of taking proper responsibility for stopping tobacco sales to minors in their stores, tobacco retailers and their trade groups want federal laws to blame and punish children and store employees, and exempt them from liability and penalties for their outlets selling tobacco minors.
Youth possession laws may actually contribute to and exacerbate the teen smoking problem. For example, youth smoking rates are generally higher in states with youth tobacco possession laws in comparison with states that do not have similar laws. Youth tobacco possession laws also show teens that tobacco is a "forbidden fruit", thus making it much more attractive to rebellious young people.
Youth possession laws also have serious ethical, discriminatory, legal and practical drawbacks. For example, these laws blame and punish the victims of the unethical and illegal activities of adults that cause children to smoke. These adults are the cigarette companies that target children in their advertising and promotional activities. These adults are the retail merchants that continue to sell cigarettes to minors. These laws deflect and diminish the responsibilities of merchants and the cigarette companies, while putting the responsibilities and burdens on children instead.
These laws are vigorously pursued and endorsed by the tobacco and retail industries in order to protect them from government regulation of the sale, distribution and marketing of cigarettes. These industries try to shift the blame to kids. Penalizing teen smokers protects the tobacco and retail industries. Tobacco retailers know that money and manpower spent to enforce youth possession laws means less money and manpower for enforcement of tobacco sales laws against tobacco sellers.
The tobacco and retail industries use their political clout to cripple tobacco sales enforcement and merchant compliance programs, and redirect enforcement efforts towards teen smokers.
The reasons for this political strategy involve the protection of these industries' financial interests at the expense of public health and child safety. These laws are supported by the tobacco and retail industries because they may shield them from civil liability if young purchasers are breaking the law. Lawsuits against cigarette companies and retailers may be weakened if these industries can use a defense that the underage purchasers were violating the law.
These laws are applied discriminatory and are selectively enforced. Kids who smoke in public are much easier targets for law enforcement than merchants who sell tobacco to minors or tobacco companies who blatantly market their highly addictive products to children. As youth see the hypocrisy of punishing them for smoking rather than punishing merchants or the tobacco industry, youth disrespect for the law, law enforcement and community values will increase. Their resentment and rebelliousness will grow.
One of the reasons these laws exist and are enforced is to get at other youth behaviors that society wants to control. For example, to some adults youth appear more frightening and intimidating when they are smoking. The reactions by some adults to these appearances by youth promote youth tobacco possession laws and their enforcement. These reactions by adults merely compensate for the fear and inadequacy these adults feel when they have to deal with these youth and their apparent aberrant behavior. These adults are looking for a quick and easy answer to the teen smoking problem.
Retail trade and lobbying groups also oppose the exemption of adult-only tobacco/ cigarette-only stores from proposed tobacco sales and marketing restrictions. The increasing competition and growing market share of these stores threaten traditional retail outlets, especially c-stores and gas station mini-marts. However, these outlets need less restrictive tobacco sales and advertising regulations if they are, in fact, adult-only stores with no access by minors.
In addition, the public and government officials, especially law enforcement officials, need to be aware of the claims made about tobacco and retail industry merchant education programs such as the "We Card" programs. These tobacco and retail industry merchant education programs have been found to be ineffective in reducing illegal tobacco sales to minors, with many limitations, weaknesses and gaps. These programs are incomplete and misleading on important topics related to preventing illegal tobacco sales to minors. By themselves, they do not reduce illegal tobacco sales to minors. Substantively, they are little more than public relations programs and smokescreens designed for tobacco retailers to avoid regulation and responsibility.
Insulting Notion of Smokers' Rights and Other Ludicrous Claims
In fighting for public credibility and legal protection, while pseudo-patriotically wrapping itself in the American flag, the tobacco industry cleverly devised the defense of individual responsibility and freedom of choice, and created the myth of smokers' rights.
When thought through rationally and logically, when a person's exercise of individual freedom and responsibility causes harm to other individuals and society as a whole, and interferes with other person's individual freedom, it ceases to be a right. It becomes tyranny.
For example, smoking is not a right or an act of individual freedom. There is no such thing as "smokers' rights." Smoking is not a right nor is it an act of individual freedom. The use of the "rights" and "freedom" argument by the tobacco industry and its smokers rights groups to defend smoking is a major insult to those Americans, especially African-Americans and other groups, who have fought and died to win and protect their rights and freedoms.
The term "smokers rights" is really a phony and artificial invention of the tobacco companies purposely designed to act as a smokescreen for their deceitful, unethical and criminal behavior. On the other hand, cigarette smoke from smokers harms the health of nonsmokers, and smokers impose greater costs on society in terms of lost productivity and higher health care costs. Nonsmokers' have the right to breathe clean air and not to breathe tobacco smoke. When smokers claim they have the "right" to exercise their "individual freedom" to expose nonsmokers, including children and the elderly, to tobacco smoke, that's tyranny.
Smoking is not an "individual freedom" or "right" issue. It is a public health problem. In fact, it is our most significant public health problem.
Another ludicrous claim is a person's right to freely choose to smoke. However given the tobacco industry's masterful marketing success in getting new smokers and keeping current smokers, especially the poor and less educated, plus knowing the highly addictive nature of cigarettes, there's really not much free choice involved in smoking.
Along the same vein, the tobacco companies do not have a "right" to exercise their "freedom" to advertise their highly addictive and unhealthy products to children, teens and other susceptible groups. The tobacco industry does not have the "right" or "freedom" to lie, deceive and cover-up its knowledge about the health dangers of smoking and the addictive nature of nicotine.
On the other hand, government intervention policies (tobacco prevention and cessation) are justified and required because tobacco smoke harms the health of nonsmokers, smokers impose greater costs on society, smoking causes disease and death, nicotine is an addictive drug, the tobacco industry markets to kids, and because the tobacco industry has lied about these things for decades.
So to wrap up, there are many contradictory and hypocritical aspects of tobacco products and the tobacco industry. All of which make up the weird and bizarre world of Big Tobacco. Sadly, these and other aspects help explain why the tobacco industry and its allies are holding their own in the Tobacco Wars against competing factions within the leaderless and unfocused tobacco control movement, timid if not tobacco lobby-corrupted Congressional leadership and state governments, and an under- and misinformed public with many other concerns and issues on its mind.
Rick Kropp is a retired tobacco prevention and policy program director,
writer, trainer and consultant. He is a recipient of the 1993 C. Everett
Koop National Health Award for his work in tobacco prevention and policy.