JULY/AUGUST 1998 � VOLUME 19� NUMBER 7&8

Professor Stanton A. Glantz has been a leading activist in the nonsmokers' rights movement since 1978, when he helped lead a state initiative campaign to enact a nonsmokers' rights law by popular vote (defeated by the tobacco industry). He is one of the founders of Americans for Nonsmokers' Rights.

At the University of California, San Francisco, Glantz conducts research in cardiovascular function. He is the author of 8 books and over 110 scientific papers, including the first major review which identified involuntary smoking as a cause of heart disease and the landmark July 19, 1995 issue of the Journal of the American Medical Association on the Brown and Williamson documents, which showed that the tobacco industry knew 30 years ago that nicotine was addictive and that smoking caused cancer. This publication was followed up with his book, The Cigarette Papers, which has played a key role in the ongoing litigation surrounding the tobacco industry. He has been an active opponent of a "global settlement" of tobacco litigation.

Multinational Monitor: Is the tobacco control movement better or worse off since the June 1997 proposed comprehensive settlement with the tobacco industry?

Stanton Glantz: That is actually a very hard question to answer. On the one hand, the tobacco issue is very much in front of the public right now, which is very good. The fact that the public health community came close to getting the McCain bill passed in a reasonable form, and that [Senate Majority Leader Trent] Lott and the tobacco industry were forced to resort to amazingly bald political shenanigans to defeat it, was also quite remarkable.

The bad thing is that the fight within the pubic health community over whether the industry should be granted immunity was very divisive, drained off a tremendous amount of resources, and really damaged a lot of important working relationships. One of the things that was particularly troubling to me, was that the National Center for Tobacco-Free Kids, the American Cancer Society and the American Heart Association chose to ignore a consensus among public health groups reached in October 1996 not to enter a deal with the industry. That led a lot of very bad fallout.

MM: How do things look from the tobacco industry perspective, compared to a year and half ago?
Glantz: They probably think they made a mistake going to the table with the June 20 deal. It substantially weakened their political position. Their previous strategy of total stonewalling -- "no one has ever got a nickel out of us" -- was working. Now everybody knows that if you just turn the heat up high enough, you can get them to settle or buckle. That is going to have long term impacts.

Meanwhile, the litigation against the industry will continue. More and more information is coming out. And even if the FDA loses [its effort to defend its tobacco regulation rule] in the Supreme Court -- which I do not expect -- the information disclosed in the context of the litigation will make it much easier for the FDA to come back and reissue its rule, using the industry's own internal documents even more than the agency did earlier.

So I think on balance the industry is doing worse than it was before.

MM: How do you think things would have evolved in the absence of a deal?
Glantz: I think you would have seen the litigation continued on a state by state basis, with each state raising the bar. If there was an attempt for a multistate sellout deal, it would have been harder for the attorneys general (AGs) to do something bad.

The original Mississippi settlement [the first state settlement with the tobacco industry] was a money-only settlement. A lot of people criticized it because it did not have any public health provisions. But the Mississippi settlement basically established the principle of full cost recovery for smoking-related Medicaid costs, which is really quite remarkable for a settlement. 

The industry also included a most-favored-nation clause. To avoid penalizing Mississippi for reaching the first settlement, it said that any subsequent settlement that had better terms would apply retroactively to Mississippi. That is a standard clause, I am told, in settlement agreements like this. I don't think the industry thought through its implications. I think they were overconfident about being able to control Congress.

What ended up happening is that Florida, which was the next state to settle, got more money than Mississippi on a per capita basis, and it also got a whole bunch of public health concessions --  advertising and promotion restrictions, and money for a pilot public health program. When Florida settled, it got rid of billboards in Mississippi.

But there were some problems in the Florida settlement. For example, the anti-smoking program could only be two years long. While there was a huge amount of money made available, there was no time made available to develop and implement a rational program. The industry was hoping to choke them with money.

Texas, the next settling state, fixed that. Instead of saying that the money had to be spent in two years, it said the money had to be spent in a minimum of two years.

Next Minnesota ratcheted up both the money and the public health concessions a lot more. Again, all that reverberated back down the food chain.

To me, the proper strategy to take is to simply take these cases one at a time, and either take them to trial or settle them. If they settle, include a most-favored-nation clause and go around the country slowing ratcheting up the ante, with each AG told to get one thing more than the one before. The other benefit of this strategy is that it gives you an opportunity to learn from your mistakes. One of the problems with the national deal is that it was a one-shot blowout. To the extent anybody got outsmarted by the cigarette companies or made a mistake in the agreement -- and there were a whole lot of loopholes and technicalities in there that were very problematic -- when you are doing it one state at a time, there is an opportunity to look at the settlement and think about it, and see what people did right and wrong, and to move forward incrementally. I am still hoping that is what happens.

MM: Why do you think the McCain bill -- the leading piece of national tobacco legislation -- failed?
Glantz: Because the bill got to the point where it might actually have done some good. It was no longer a bailout for the tobacco companies, so the Republicans killed it.

In its final form, the McCain bill gave the FDA clear jurisdiction over tobacco, it had a big tax increase, it had a look-back provision (requiring the tobacco companies to pay penalties if youth smoking rates did not decline by specified amounts) with teeth. And it didn't have anything bad in it.

Historically, progress has occurred in the tobacco control movement when people make clear, unequivocal steps forward, no matter how small. Progress has been arrested when the industry was given something. What the industry would have gotten with the June 20 deal was preemption of a lot of state and local activities, and immunity from civil litigation, which would have arrested the process of bringing them to justice.

MM: Since the demise of the McCain bill, tobacco is pretty much off the radar screen, at least in Washington. Why do you think that is?
Glantz: I think there are a couple reasons. In part, that is the way Washington works -- one thing at a time. Another factor is that there seems to be a consensus among odd bedfellows that Washington is not the place to deal with this problem. The tobacco companies don't want Washington to do anything. And large elements of the public health community, including me, don't want Washington -- or at least Congress -- involved.

But it is not true to say that nothing is happening in Washington. The Clinton administration has done a few things that are quite good. These are not huge things, but they are positive things. They have empowered the federal government to collect data by brand on tobacco consumption by kids. That is the first step to put in place a system that penalizes companies for having kids smoke their brand. A second step forward is a new FTC rule saying warning labels must be in the language of the ads. Until quite recently, if you had a cigarette ad in Vietnamese, the warning label was in English. Again, that is not a real big thing, but it is a positive thing. The administration has indicated it expects the National Cancer Institute to continue the Assist program -- which supports community-based tobacco control groups -- which is the best thing that the federal government has ever done in tobacco. And the administration is trying to put in place a structure to help people analyze and make available all the documents that Minnesota has pried out of the industry. The federal government is also continuing to defend the FDA rule and the EPA report on second-hand smoke [recently determined by a federal court to have been improperly conducted].

MM: But the public health people who supported a deal and were committed to getting a deal passed did not think that they were doing harm. What different visions motivated them?
Glantz: I think the vision that those people, epitomized by Mike Pertschuk [of the Advocacy Institute], was that this was our one big chance to do something meaningful on tobacco; and that the tobacco industry is so powerful that the only way to do something meaningful was to create a win-win situation, where the tobacco industry would win something, and the public health community would win something.

The problem with that view is that those two things are antithetical. Anything that in the long run benefits public health hurts tobacco, and vice versa. One thing that the tobacco industry has been very good at, over my entire lifetime, is in thinking over the long term, not the short term. The industry clearly viewed the June 20 agreement as something they could live with and prosper under. To the extent that they prosper, public health suffers.

The other fundamental difference in vision is the importance of national legislation at all. People like me do not see national legislation as a big deal.

The one unique thing that could be done through national legislation is securing FDA jurisdiction over tobacco. But if you go back and look at the original FDA strategy as hatched by Scott Ballin and people at the American Heart Association, the idea was predicated on a hostile Congress that would never do anything good on tobacco and did not like the FDA. The idea was to craft a regulation which would not require congressional action; and, anticipating a challenge by the industry, to craft a regulation that would survive a challenge in the Supreme Court. Everyone knew the tobacco industry would sue. Everyone knew they would venue shop, and try to find a sympathetic judge and a sympathetic court of appeals, which they did. Everyone knew that the decision would be made ultimately by the U.S. Supreme Court. I think that was a good strategy initially, and I think that there was no reason to abandon it. And we are now back to it.

MM: Supporters of the deal seemed to have a much more centralizing, managerial type of view, while opponents had a much more bottom-up view of change.
Glantz: There is this old saying that where you stand depends on where you sit. The tobacco control people who sit in Washington tend to see things from a Washington perspective. At the risk of agreeing with Newt Gingrich, reality changes at the Beltway.

The same kind of disjointed visions often play out at the state level, when you compare the lobbyists at the state capitols who have generally been willing to accept concessions to the industry, such as preemption of local regulatory authority, versus the grassroots people. The state-level people or the federal people say, "It is very nice what you can do one step a time, community by community, but if we can get one national law, or one state law, which moves the mark forward directly, then it is worth providing some concessions, and it is too slow to go community by one community."

That is not an irrational position. The problem is the public health people have limited resources, and the tobacco industry has unlimited resources. So the larger the stage, the more the results are biased toward the industry. Whereas if you are fighting at the community level, the resources that the anti-tobacco people can mobilize are usually enough to win. The tobacco companies may come in and spend a ton of money, but the money reaches a point of diminishing returns.

If the public health community could have mustered the resources to mount a national campaign, there is nothing in theory arguing against it. It was just the practicalities. In fact, near the end of the legislative debate, as the McCain bill was improved through amendment and immunity was stripped out through amendment, I was beginning to see the same kind of forces come into play that I've seen in successful local ordinance fights. But I think it was too late, and the level of distrust that had built up over the immunity issue among public health groups prevented the public health groups from coming together strongly enough.

At the time, there was a lot of talk that the debate over the McCain bill was taking too long, but the way I looked at it, the longer the debate went on, the more educated the public became and the stronger the public health people were. A majority in the Senate supported the amended bill and Lott and allies had to resort to very bald procedural subterfuge to defeat it. If you had come to me six months earlier and said that a strong bill without immunity would have garnered a majority vote in the Senate, I would have thought you were nuts.

MM: To the extent a good national approach with no concessions is imaginable, what should be the components of a national anti-tobacco strategy?
Glantz: The first thing is a national approach that is designed to empower communities. Tobacco is first and foremost a social problem, and a problem of how society views tobacco. That is why the tobacco industry gives lots of money to sponsor community events and to sponsor community organizations. They want to be viewed as part of the community. They want tobacco use to be an accepted part of American life. If you look at the lessons of the California campaign, and from Massachusetts and the federal Assist program, the involvement of community groups and community members in countering and changing that reality has been very important.

So the first thing I would do in a federal program -- and there is no reason the Clinton administration could not just do this -- is fund large-scale, community-based interventions. Put a couple of billion dollars into it. Illegal drugs, which kill about 8,000 people a year in the United State, get $15 billion a year. Tobacco annually kills 480,000 people in the United States.

The second thing I would do is an aggressive counteradvertising campaign, that was not just directed at children, but directed at everybody. It would work to delegitimize tobacco use and the tobacco industry and to educate people about second-hand smoke.

You could also increase the price of tobacco through taxation, and set up something like the lookback proposal, which done properly would create an economic disincentive for the industry to recruit kids.

But these are things by and large which would not be imposed by Washington. These are things where Washington would be acting to empower the community.

MM: On the matter of kids, what is your explanation for the rise in teen smoking rates amidst the huge focus on teen smoking?
Glantz: I think one of the reasons teen smoking rates are going up is because of the publicity around teen smoking.

The tobacco industry promotes smoking by kids by presenting tobacco use as a way to look grown up, and a way to rebel. All of this talk about keeping kids from smoking, and kids this and kids that, in a subtle way reinforces the tobacco industry message that smoking is for grown ups.

You cannot reduce teen smoking in a vacuum. Teens are a part of society. Teens emulate adults, especially young adults. If you want to reduce teen smoking, you have to show the adult populace rejecting tobacco use. Do as I say, not as I do, never worked well with teenagers.

MM: What is the industry's strategy for the next decade?
Glantz: To move overseas. One of the premises upon which the deal was based -- in fact the core premise -- was that the industry is losing the American market and the market of a lot of the developed countries, but that all this litigation was causing a lot of problems. They wanted to get the litigation behind them so they could concentrate on overseas expansion, particularly in the developing world. I think that is what they are going to try to continue to do. The question is just how stable or unstable is their American base.

MM: What should be tobacco control activists' long term strategy? Should the industry be allowed to exist?
Glantz: If the public wants the tobacco industry destroyed, it can be made to happen.

Here in California, the state legislature a couple years ago passed a law eliminating tobacco billboards within a 1,000 feet of schools and playgrounds. The administration of Governor Pete Wilson did not enforce the law. But a private group brought a suit against the billboard companies. To settle that suit, the billboard companies took down all tobacco billboards in the state.

One of the reasons that the billboard industry was willing to do that was a feeling that it did not want to be associated with the tobacco companies any more. The money they were making was not worth the bad press and bad feelings associated with doing business with the cigarette companies.

I think it is totally within the realm of possibility to create an environment in which normal, ethical, good people do not want to have anything to do with this industry. That will make it harder and harder for the industry to survive.

On the other hand, if you look here in California, the Wilson administration, which has been quite pro-tobacco, succeeded in running the state's anti-smoking program into the ground. It is possible to spend a lot of money and have very little effect, if you run the wrong kind of program.

The control of the future really rests in the hands of the public health community and the nongovernmental organizations. If they are willing to play hardball, the public will be with them, and I think they can force the politicians to do the right thing. If, on the other hand, the public health community continues perceiving itself as weak, or is overly compromising or overly cautious, then the industry will win.