TCS Daily

To Really Stop Smoking

By John E. Calfee - July 6, 2005 12:00 AM

When the Department of Justice announced in 1999 that it was suing the tobacco industry for billions and billions of dollars, a lot of people cheered. When the DOJ lawyers announced near the end of that trial in June that they would ask for only $10 billion instead of the $130 billion their own experts thought they should get, practically every newspaper editorial page in the country hammered the DOJ for caving in.

The critics had already been upset when the trial judge ruled that the DOJ could not get a couple of hundred billion or so to cover all the profits the industry had made in the past half century or so. That would have put the manufacturers into bankruptcy, which is what anti-smoking forces wanted. But the DOJ could still get seek $130 billion to cover the costs of getting all smokers to quit, even the ones who haven't started yet. That would have bankrupted the industry, too, creating a delectable arrangement in which the courts would run Big Tobacco and probably guide most of its revenues (extracted from smokers, of course) to anti-smoking advocates with lots of expensive ideas for helping smokers quit smoking.

That could still happen. There is nothing to keep the judge (there's no jury in this case) from awarding far more than the DOJ plaintiffs requested.

But the critics have got it all wrong. The DOJ should never have brought this case, which was based on the absurd premise that during the previous four or five decades the Surgeon General was fooled by the tobacco companies into thinking smoking wasn't really very dangerous. And having brought the case, the DOJ should never have asked for billions and billions of dollars - not for recouping profits and especially not for working anti-smoking magic in the marketplace.

A federal anti-smoking crusade cannot work, even one funded by more than we spend in half a decade on researching how to cure diseases (all of them, not just lung cancer). Once smokers and potential smokers have learned that their habit kills, there is not a lot you can teach them about smoking and quitting.

Anti-smoking ads never do much, which is hardly surprising because cigarette ads never caused much smoking according to almost every rigorous study ever published. Ad bans have effects that are elusive at most. In the meantime, tobacco control academics publish elaborate studies of this or that type of ad (pro- or anti-smoking, fearsome or comforting) aimed at kids in the fourth grade or the eighth grade or maybe high school, all adding up to an endless supply of enticing results that never work out when someone actually tries to use advertising to prevent smoking. And there are lots of school-based programs on which one can spend real money if its available, just to demonstrate once again how hard it is to get young people not to do what the government wants to them not to do.

It is time for the federal government to stop doing what doesn't work and start doing something that might do some good. Let's forget about piling on ever more litigation against the industry, extorting more and more billions of dollars -- all of it paid by smokers and most of it spent by state governments on non-smokers -- while whittling away at advertising and promotion. None of that does smokers any good unless you think you help them when you take money out of their pockets. If you really think higher prices are good for smokers, pass a tax law instead of squiggling past Congress by bringing lawsuits.

What the feds can do that would actually help is to make it easier for manufacturers to compete by offering less dangerous products. A lot of stuff is already on the market, including smokeless cigarettes and snus, a pellet that smokers can put in their mouth to get nicotine and flavor without risking the myriad dangers of tobacco smoke. But the Federal Trade Commission and the anti-tobacco community make it almost impossible to promote these life-saving advances. Changing that policy would do a lot more good than bringing multi-billion dollar lawsuits. We need less litigation and more old-fashioned competition in safer tobacco use.

John E. Calfee, an economist at the American Enterprise Institute in Washington, D.C., spent the early 1980s at the Federal Trade Commission, where among other things he studied federal regulation of the cigarette market.



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