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Burned by a Tobacco Bill

The opinions expressed by columnists are their own and do not necessarily represent the views of

WASHINGTON -- Politicians have extraordinary shoulder joints that enable them to pat themselves on the back, and last week the president, a master of that calisthenic, performed it in the Rose Garden. His subject -- aside from himself, as usual -- was the bill by which Congress authorized the Food and Drug Administration to regulate tobacco. The president called this "a bill that truly defines change in Washington" and "changes the way Washington works and who Washington works for."

Our leaders are often wrong but rarely so precisely wrong. In two important particulars the bill is a crystalline example of Washington business as usual -- the protection of the strong. The bill was supported by America's biggest tobacco company and by the Democratic Party's fountain of funds, the trial bar.

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Congress could ban cigarettes, therefore it could ban tobacco advertising. Instead, tobacco advertising and promotions will be even more severely curtailed. These restrictions merit a constitutional challenge. Although commercial speech does not receive full First Amendment protection, Congress should not be allowed to effectively prohibit truthful communication about a legal product. Philip Morris, however, can live -- indeed, can flourish -- with the new restrictions on the marketing measures by which less powerful companies might threaten its dominance. And lest courts conclude that companies cannot be sued for behavior (selling cigarettes) governed, hence authorized, by a regulatory body, the bill stipulates that it shall not be construed to limit "the liability of any person under the product liability law of any state."

Government policy regarding tobacco, as regarding so much else, is contradictory and unlovely. Nevertheless, it has been, on balance, a success: Americans are behaving much more sensibly.

Before the surgeon general declared tobacco addictive (1988) and carcinogenic (1964), before a character in a 1906 O. Henry story asked, "Say, sport, have you got a coffin nail on you?" people intuitively understood that inhaling smoke is unhealthy. Smoking is addictive (although there are about as many ex-smokers as smokers), sickening, often fatal and usually childish: Ninety percent of all smokers start by age 18; few start after 21. But death and intelligence cost the companies 6,000 customers a day, so that many new smokers must be made daily just to keep up.

Ironies abound. The February expansion of the State Children's Health Insurance Program is supposed to be financed by increased tobacco taxes, so this health care depends on an ample and renewable supply of smokers. State governments, increasingly addicted to tobacco tax revenues, face delicate price calculations: They want to raise their regressive tobacco taxes (smokers are disproportionately low income and poorly educated) to just below where smokers are driven to quit.

Governments cannot loot tobacco companies that do not flourish. In a 1998 settlement, 46 states conspired to seize $206 billion from companies selling legal tobacco products made from a commodity subsidized by the governments that subsidize treatment of tobacco-related illnesses. The dubious premise of the settlement was that smoking costs governments substantial sums. Actually, tobacco is the most heavily taxed consumer good (Rhode Island's is $3.46 per pack) and the accurate actuarial assumptions of public and private pension plans are that premature deaths of smokers will save billions in payments.

In the early 1950s, the sponsor of anchorman John Cameron Swayze's "Camel News Caravan" on NBC television required him to have a lit cigarette constantly visible. Today smokers are pariahs in a country the Father of which was a tobacco farmer. Someday the ashtray may be as anachronistic as the spittoon, but fear of death may be a milder deterrent to smoking than is the fact that smoking is dumb and declasse. Dumb? Would you hire a smoker, who must be either weak-willed or impervious to evidence? Declasse? Twenty years ago, California cut smoking 17 percent with commercials such as: "I tried it twice and I, ah, got all red in the face and I couldn't inhale and I felt like a jerk and, ah, never tried it again, which is the same as what happened to me with sex."

Three decades ago, public outrage killed an automobile model (Ford's Pinto) whose design defects allegedly caused 59 deaths. Yet every year tobacco kills more Americans than did World War II -- more than AIDS, cocaine, heroin, alcohol, vehicular accidents, homicide and suicide combined.

In the time it takes to read this column, three Americans will die of smoking-related illnesses. If you tarry to savor the column's lovely prose, four will die, so read fast.

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