Breaking through the smoke screen

The Scotsman and The New Zealand Dominion, June 14 1988

Rose Cipollone was already on her death bed when she started to fight. With her hair moulting from chemotherapy, she gave a deposition to a lawyer which, five years later, was to land a historic blow on the tobacco companies she blamed for her lung cancer.

In her deposition, she explained how when she was a child, she and her sisters would dress up in grown-up clothes and roll up little pieces of paper to hold in a mock elegant pose. Later, she saw advertisements with Gregory Peck and Tyrone Power. “I was going to be glamorous and beautiful,” she said, so she smoked 30 cigarettes every day for 40 years.

Much later, when the US surgeon general warned that smoking could cause lung cancer, she did not believe it. She thought, she said, “that if there was anything that dangerous, that the tobacco people wouldn’t allow it and the government wouldn’t let them do it.” In 1984, after three years of illness, she died, aged 58, ensuring first that her husband, Tony, promised to take her deposition and to pursue the legal action which she had started.

On Monday evening, outside the federal courthouse in Newark, New Jersey, Tony Cipollone gave an impromptu press conference in which he claimed victory for his dead wife. The jury had awarded him $400,000 in damages, finding that the Liggett Group, which made Rose’s Chesterfields, had failed to warn her of the danger. It was the first time in 300 legal actions that the tobacco companies had had to pay a single cent in damages.

But even as he spoke, the tobacco companies were also taking the stage, and they, too, were claiming victory. The jury had failed to award punitive damages, they said, and had rejected the idea that the companies had deliberately conspired to mislead smokers about the dangers of cigarettes. “It is not a big loss,” said their attorney, Donald J Cohn.

The legal effect of the case is, indeed, narrower than Mr Cipollone’s lawyers had hoped. The jury appears to have been unmoved by the 100,000 pages of internal tobacco company memos in which it was disclosed that the companies’ scientists had found solid evidence that smoking caused cancer and had suppressed it and that the companies had at one point entered into a ‘gentleman’s agreement’ with each other not to conduct research on the dangers of smoking.

The jury’s verdict goes back to the period before 1966 when cigarettes were sold in the United States without a health warning. Evidence at the trial showed that at that time the tobacco companies had good reason to believe that their products were dangerous and, furthermore, that their private opinion polls showed that, like Rose Cipollone, most smokers were unaware of the risk. The Newark case suggests that only smokers whose illness may be traced back to this period can sue successfully.

However, the more important effect of the case may be political and social. In an ominous development for the tobacco companies, Wall Street reacted to the jury’s decision by sending their share price into a mini-slump, with British American Tobacco leading the way with a 37 cent drop before noon.

The case fits into a pattern of bad news for the tobacco companies. Last month, the US surgeon general, Everett Koop, cut through years of medical horse-trading and declared unequivocally that smoking is as addictive as the use of heroin and should be subjected to the same strenuous campaign that is now being waged against illegal drugs.

Last week, New York City ended a two-month period of grace and made it a legally enforceable offence to smoke a cigarette in public places such as taxi cabs or toilets or to run a business such as a restaurant or a bank or a sports arena without providing a clearly labelled no smoking area. New York’s is only the most celebrated of 400 different local initiatives across the United States aimed at stamping out cigarette-smoking in public. Airlines now ban smoking on short flights.

In Beaver, West Virginia, Dr John Canell has caused a stir in the medical profession by refusing to take on smokers as patients. His father died of lung cancer and he has placed an advertisement in the local press warning prospective patients that he does not intend to encourage anyone else to die like his father by turning a blind eye to their habit. In Greenville, Texas, last month, Judge Leonard Hoffman, who gave up a 40-a-day habit in 1956, ordered a woman convicted of theft to stop smoking within 30 days so that she would have enough money to feed her family without turning to crime.

The turning tide against smoking is reflected in the sales of cigarettes which have dropped in the United States from a peak of 636 billion in 1981 to 580 billion in 1986, the last year for which figures are available. But 580 billion cigarettes is still a lot of smoke and, despite the pattern of bad news, there is no evidence that the tobacco companies are about to admit defeat and go away.

The cutting edge of their answer is advertising. Between them, the big six US tobacco companies spend $250,000 an hour around the clock on advertising. They can easily afford it. Cigarette prices are higher than ever, earning the companies a record high income of $33.7 billion in 1986. They have reinforced their flagging sales by targeting markets which are slow to react to the health warnings – the inner city poor, for example. Among those earning over $50,000 a year, only 23% now smoke. Among those earning less than $15,000, 38% smoke. Hispanics are the only ethnic group whose consumption of cigarettes is rising.

The companies are also pushing hard at overseas sales, particularly in Asia where lung cancer is now racing up the league table of deaths rising from 600,000 cases a year to a projected two million by the year 2000.

In a diplomatic skirmish which symbolises the gap between the increasingly health-conscious United States and the vulnerable third world, Secretary of State George Shultz, who so detests smoking that he has banned it on his official aeroplane, has had to put on his fixed smile and accept well-meaning gifts of silver cigarette boxes from dignitaries in India, Guatemala and Mexico in the last year.