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Chapter One

Thinking the Unthinkable

I was startled. I was intrigued. I needed to talk to Matt Myers. I'd opened my New York Times Magazine that Sunday, April 7, 1996, to find that Dick Kluger had written a cover story headlined, "A Peace Plan for the Cigarette Wars."

    Kluger's voice carried great authority. His mammoth, definitive chronicle of America's hundred-year cigarette wars, Ashes to Ashes, was about to be published. It was destined for the Pulitzer. In it, he had unmasked Philip Morris's mendacity and given fair due to us hounds who had nipped at Big Tobacco's heels. He was, to be sure, a historian, not a tobacco control advocate. But he was no apologist for Big Tobacco. We had come to trust him. But the Times article, adapted from the concluding chapter of his book, was our first glimpse of his reasoned judgment of the most promising strategy now for the tobacco companies—and for us, the tobacco control advocates.

    Kluger proposed that the tobacco companies "relax their rigidly combative posture and abandon their precarious existence under the volcano long enough to entertain a Congressionally brokered accommodation with the protectors of the public health." And he proceeded to lay out the broad outlines of "a sweeping legislative compromise" embracing the following features:

· Congress would issue a blanket grant of immunity to the tobacco companies against all pending and future product-liability claims on the grounds that the highlyhazardous nature of smoking has long been common knowledge and adequately warned against.

· The FDA would be given regulatory oversight of the manufacture and packaging of cigarettes, including the power to set maximum levels for their hazardous ingredients.

· Health-warning labels would be enlarged to occupy the entire back of all cigarette packs and would carry far more informative language.

· The proposed OSHA regulation restricting smoking at most workplaces to well-ventilated annexes and the FDA program to make cigarette marketing far less alluring to young people would be promptly implemented.

· The federal cigarette tax would be doubled to forty-eight cents to pay for enforcing these new regulations, and an additional two-cents-a-pack levy would pay for an antismoking advertising campaign and other public education programs like free quit clinics, to be run by the Office on Smoking and Health.

    What was so startling about this peace proposal? And why was I intrigued? Because in more than thirty-five years of working for stronger controls on tobacco marketing, I had never once entertained the possibility that the tobacco companies would accept at the bargaining table such fundamental controls as Kluger now suggested they would be prudent to embrace.

    To be sure, many in the tobacco control movement viewed Big Tobacco as on the run, especially those among the emerging cadre of citizen leaders who had led in the mid-1980s a series of successful campaigns at the community level. Perhaps foremost of these was Stanton P. Glantz, an eloquent scientist and founder of Californians for Nonsmokers' Rights (now Americans for Nonsmokers' Rights, [ANR]), who transformed the statistics of tobacco's toll on nonsmokers into a potent weapon of political rhetoric on behalf of smoke-free public places. At his side was Julia Carol, the codirector of ANR, as effective in organizing and weaving a powerful national network of grassroots advocates into a political force as Glantz was in motivating them. They, and the community-based activists they led, had begun to transform the indoor-smoking environment town by town through the enactment of local clean-indoor-air ordinances in city and county councils, where the reach of the tobacco lobby was most attenuated.

    Meanwhile, at the national level a new surgeon general emerged, Dr. C. Everett Koop, to the bitter consternation of his patron, North Carolina's Senator Jesse Helms, who had advanced his candidacy on the basis of Koop's rigorous antiabortion campaigning. Dr. Koop transformed the relatively powerless post of surgeon general into a national bully pulpit to proclaim that tobacco use was at least as addictive as heroin or cocaine, and that "secondhand," "involuntary," or "environmental tobacco smoke" was a proven environmental killer as lethal as radon, lead, and other pollutants.

    While Congress as a body did little, public health leaders in Congress, especially Congressman Henry Waxman, as chair of the House Subcommittee on Health and Environment, and Senator Ted Kennedy, as chair of the Senate Health, Education, and Labor Committee, skillfully utilized the platform of attention-getting tobacco control bills and congressional hearings to focus on tobacco industry wrongdoing and the need for appropriate legal restraints on this rogue industry. Thus, Waxman memorably summoned the heads of the tobacco companies and placed them under oath as they intoned their defiant denials that cigarettes were addictive—a performance that, perhaps more than any other event, brought home to the American people the ethical swamp in which these captains of industry perpetually dwelled.

    And the media, especially television, freed by the 1970 broadcast ban on cigarette advertising from the constraints of placating tobacco advertisers, became more and more aggressive in undertaking illuminating investigative reporting—reporting that undergirded the message of Koop, Waxman, Kennedy, and others that the Philip Morris Companies and the R. J. Reynolds Tobacco Company belonged in the same rogues' gallery as the Medellin and Cali Colombian drug cartels.

    Then, in the early 1990s, came three transformative events that catapulted tobacco control to the forefront of national attention and placed the tobacco companies—and their investors—at great risk:

• The election of Bill Clinton, among whose first acts on his first day was the banning of tobacco use in the White House. As his term progressed, Clinton, prodded by Vice President Al Gore and First Lady Hillary Clinton, became progressively more aggressive in supporting, then in pursuing, comprehensive tobacco control targeted at reducing youth smoking.

• The unprecedented assertion in February 1994 by Dr. David Kessler, commissioner of the Food and Drug Administration, of FDA regulatory authority over nicotine as "a drug" and cigarettes as "drug delivery devices" under existing law, despite none of Kessler's predecessors ever having claimed such authority. And Kessler, the pediatrician-lawyer, brilliantly framed tobacco use as "a pediatric disease," effectively evoking the moral imperative and the popular political support for government protection of children from predators: "Of course we all want freedom for our children. But not the freedom to make irreversible decisions in childhood that result in devastating health consequences for the future. Addiction is freedom denied. We owe it to our children to help them enter adulthood free from addiction. Our children are entitled to a lifetime of choices, not a lifelong addiction."

• The audacious initiation in May 1994 by Mississippi attorney general Mike Moore, a young Democrat and an aggressive reformer, of the nation's first massive government lawsuit against the tobacco companies, claiming they owed Mississippi billions of dollars in excess Medicaid costs caused by smoking. Moore's suit had been followed quickly by Minnesota's, under the leadership of State attorney general Hubert "Skip" Humphrey III and a handful of other pioneers.

The great genius of these cases, unlike the failed personal injury cases brought for three decades by dying smokers or the families of dead ones, was that the juries would no longer have to overcome their instinctive belief that, no matter how duplicitous the tobacco companies were, the smokers really knew the score and made the bed they ended up in. In Moore's case, made possible by the legal acumen and financial resources of Mississippi's near legendary plaintiff's lawyer, Richard Scruggs, and in the seven cases filed by other state attorneys general by the date of Kluger's article, the victims were not weak-willed smokers but sturdy taxpayers with strong backs who had borne the costs of caring for the smokers—taxpayers like the very jurors who would be called upon to decide the cases.

    But I hadn't thought much about where these cases might lead, other than to bring well-deserved harassment to the companies, dynamic publicity about industry wrongdoing (which would help move tobacco control laws forward), and perhaps—at the end of the rainbow—substantial, if not crippling, damages to the industry.

    What I hadn't seen, and what Kluger suddenly illuminated for me, was how these cases, which I had thought were necessarily limited to monetary damages, could be leveraged to bring about what was for me (and Kluger) the single most important public policy goal for the tobacco control movement—broad, unfettered federal regulatory authority, mandated by Congress, over all tobacco manufacturing, marketing, and advertising. I would also learn that Moore and at least some of his colleagues were determined to seek "equitable" relief, asking the courts to mandate changes in the fundamental behavior of the companies.

    The price Kluger told us we would have to pay—swallowing a grant of immunity to the companies for their past and future sins—troubled me. It would be galling to let these companies, arguably the most destructively corrupt corporate enterprises in history, escape accountability to their victims. But, since thirty years of litigation against the companies had yet to result in a single cent paid to any victim, since the novel legal theories of the state attorneys general were yet untested before courts or juries, and since Kluger's proposal would have encompassed every public health remedy that any of us had conceived of, his proposal did, indeed, intrigue me.

    That this possibility had never before occurred to me was not exactly surprising. Those of us who had chosen to fight the tobacco industry as an avocation had spent much of the past thirty years with one polestar on our political horizon: the tobacco industry was as politically impregnable as it was greedy and corrupt. To be sure, obscure murmurings had begun to emerge from the new-generation head of R. J. Reynolds—a corporate lawyer, not a deep-bred tobacco man—that perhaps the time had come to explore an end to the tobacco wars. But those whispers hardly signified that the industry was prepared to make the kind of concessions Kluger was suggesting, despite the looming threats.

    The industry had cut deals with Congress before, but always on its own terms, skillfully and cynically playing its dominant economic and political hand. In the 1960s, following the authoritative 1964 report of the Surgeon General's Advisory Committee on Smoking and Health, which forthrightly condemned tobacco use as a major cause of death and disease, some public clamor arose for responsive government action. Under the tutelage of a former deputy majority leader of the Senate, Earl Clements, who had become the chief tobacco lobbyist, the industry adopted the essential strategy that it would follow for the next thirty years: give an inch to gain a decade. The industry would accept, with a show of pain, largely cosmetic concessions with no fundamental restraints on its freedom to recruit each new generation of kids and adolescents.

    The tobacco companies accepted a mealy-mouthed cautionary warning label in the mid-1960s. By the 1970s, the industry acceded to the ban on television and radio ads—thereby freeing themselves from the nettlesome antismoking "fairness" ads that an uncharacteristically bold Federal Communications Commission had mandated in the ratio of one for every three cigarette commercials. By the mid-1980s, the industry, under pressure from a newly forceful public health lobby led by Matt Myers, yielded to somewhat more forthright warning labels; at the same time, the tobacco companies managed to keep off their products the dreaded label "addictive."

    After each law was passed, the companies simply redoubled their artful exploitation of all the remaining unregulated forms of advertising and promotion. For our pains in achieving the ban on broadcast advertising, we were rewarded with the world's most powerful brand images—the Marlboro Man, vaulting from television to ubiquitous billboards, and Joe Camel, affably engaging the rebellious hormones of eleven-, twelve-, and thirteen-year-olds.

    By 1996, we had gained in Congress only what the industry had chosen to give up, no more. We had made inches of progress, but for decades the White House had failed to seek, and the Congress to enact, any laws that held the promise of significantly shrinking tobacco's toll of disease and death.

    And how could it have been otherwise? No other industry had the protection in Congress and the White House that tobacco commanded. Jimmy Carter became a forceful advocate for tobacco control—after he left the White House. But campaigning for the presidency in the spring of 1976 in North Carolina, the most bellicose statement he could utter on killer tobacco was, "We're going to do all we can to make tobacco even more safe than it is now!"

    In Congress, the fifty or so tobacco district House members were known to their colleagues as "the Tobacco Boys," willing to trade votes for New York urban renewal or Western cattle-grazing rights in return for solidarity against any serious effort to curtail tobacco marketing. And the ranks of the industry's hired mouthpieces, its lobbyists, by the 1990s included two former Senate majority leaders—the bipartisan team of Howard Baker and George Mitchell—and hundreds of slightly lesser lights with the keys to virtually every congressional door, among them the closest friends of the strongest public health advocates, like Ken Feinberg, Ted Kennedy's fund-raiser and confidante. And the tobacco companies rained campaign money down upon Congress. So, as one wit put it, their power came not just from the tobacco leaf, which grew in only a dozen states, but from the green lettuce harvested in virtually every congressional district.

    And now, in the mid-1990s, they had a Republican-led Congress that hated what they hated: government regulation of business, especially the Food and Drug Administration, whose commissioner, David Kessler, had the temerity to regulate. For this vice, he was labeled by House Speaker Newt Gingrich "a bully and a brute." And squarely in charge of any tobacco legislation in the House was its Commerce Committee chair, Tom Bliley, from Richmond, Virginia, Philip Morris's own hometown congressman.

    Indeed, in that spring of 1996, what we most expected from the tobacco lobby and this Congress was not an inch of progress, but a giant step backward. What was in the offing was a Philip Morris—engineered Trojan horse of a "Youth Protection Law" with yet more token provisions to warn children to "Just say no!" to tobacco use. In its back pages, in its fine print, we would see the genius of tobacco's lawyers, shutting the door to any future effort by Kessler or his FDA successors to regulate this drug.

    So, despite the looming threats, until I read Kluger in the Times Magazine that day, it never occurred to me that this industry would ever see the need to "make peace"—if the price were serious regulatory measures that held the potential for radically reducing tobacco use in this country and an effective national program to disenchant teenagers with the glamour of smoking.

    If that idea were not mind-warping enough, in order to make this happen, the industry's lobbying army would need to be deployed, not to make the usual negative mischief, but to convince their good friends in Congress to swallow their hatred of regulation, and especially the FDA, and grant it vast police powers.

    Still, here came Kluger, with the perspective of a historian and the detachment of a friendly observer, not an advocate, suggesting that these fundamentals of tobacco politics had shifted—at least for this particular moment in the political history of the tobacco wars.

The cigarette makers, besides being the subject of five Federal grand jury investigations around the country, are enmeshed in lawsuits of unprecedented scope and peril.... Bill Clinton, moreover, is the first President to take an unequivocal stand on this issue.... Even in an era when deregulation is all the cry, many in Congress have begun to grasp that smoking may be an issue beyond partisan politics and that cigarettes are a product that will never be tamed without government intervention.

Kluger concluded, "The tobacco industry, then, may finally sense that time is running out on its bunkered status. So much so, that it might well be willing, for the first time, to accept comprehensive regulation which would significantly diminish at least its domestic U.S. market, and lead to the sparing of hundreds of thousands, even millions of premature deaths from tobacco."

    I didn't quite trust my instincts on this. I needed to learn what Matt Myers thought.

Chapter Two

Why Matt Myers?

Why was Matt Myers the logical person to turn to for a prudent assessment of the Kluger proposition? Because no one working on tobacco control in Washington knew more about what was going on, had worked longer or harder at thwarting the tobacco lobby, or had displayed such sober judgment. For more than fifteen years, Matt had served as the chief strategist and lobbyist for the Coalition on Smoking OR Health, the tobacco control arm of the major voluntary health associations—the American Cancer Society, the American Heart Association, and the American Lung Association. It was Matt who had lobbied through Congress the 1984 cigarette-labeling bill creating four straightforward, rotating health warnings.

    In the context of the mammoth challenges the tobacco companies faced by the late 1990s, this hardly seems a significant advance, but it was the very first time the previously omnipotent tobacco lobby, which battled to stop the bill, was outmaneuvered and out-lobbied in Congress. Before that, no tobacco control legislation passed that didn't serve the industry's strategic needs and bear its lobbyists' stamp of approval. It was only a small step for mankind, but as the tobacco wars went, it was a giant leap forward.

    In Ashes to Ashes, Dick Kluger recounts Matt Myers's contributions often, and always with respect. He does not offer a colorful portrait of Matt, as he does of so many other activists whose less sober traits will also grace this book, but he draws out, again and again, Matt's solid attributes as "a product of the Sixties protest generation whose idealism had been tempered by years on the road as a troubleshooting litigator for the American Civil Liberties Union." He refers to Matt's "mental toughness," his "working seven-day weeks," his "square shooting;" he calls Matt a "knowing tactician" and a "skilled lobbyist."

     In 1994 and 1995, The Robert Wood Johnson Foundation, especially its senior program officer for substance abuse control, Nancy Kaufman, took a hard look at the strength of institutional support for tobacco control advocacy in Washington and found it wanting. The foundation proceeded to commit $20 million over the next five years (matched by $10 million from the American Cancer Society and smaller grants from the American Heart Association and the American Medical Association) to the creation of a new advocacy organization focused solely on tobacco control—what would become the National Center for Tobacco-Free Kids (the Center), and its namesake coalition, the Campaign for Tobacco-Free Kids (the Campaign). To build and lead the Center, they recruited Bill Novelli, a pioneering advertising-agency founder and an innovator and practitioner of strategic communications, with strong management skills. Novelli, in turn, recruited Matt Myers as the Center's chief legislative strategist and lobbyist. So Matt and the Center were now, indeed, at the center of tobacco control strategy in Washington.

    In the last few years, I had drifted away from day-to-day engagement. I found myself out of the loop on Matt's strategic thinking. We hadn't had a serious conversation about where he—or the movement—was heading for a long time. So first thing on the Monday morning after Kluger's jarring piece had appeared in the New York Times, I called him. Did he view Kluger's peace plan as a naïve fantasy, or a harbinger of things to come? I was to be startled for the second time in two days.

    Matt had undergone, over time, a radical change in his vision of the future for tobacco control—going back more than two years, back to the February 1994 letter that David Kessler had written to the American Lung Association indicating his preliminary investigative determination that cigarettes were being deliberately manufactured and marketed to deliver calibrated doses of the addictive drug nicotine and hence fell within the broad existing powers of the FDA to regulate all aspects of the manufacture and marketing of such "drug delivery devices." Among the remarkable aspects of that letter was the fact that no previous Food and Drug commissioner had ever put so much as a tentative toe in the waters of tobacco regulation. Kessler was extremely careful to avoid any suggestion that FDA was prepared to take radical action to prohibit—or denicotinize—cigarettes. He spoke only of a regulatory regime that would bring an end to the industry's overt marketing efforts targeted at the very young. But looming in the wings, unstated, was the knowledge that if the courts upheld Kessler's assertion of power—the tobacco industry was sure to appeal all the way to the Supreme Court—and Congress kept its hands off, that power could be used in the future to fundamentally reshape the manufacturing and marketing of tobacco products in this country.

    What promise did such FDA regulation hold for Matt? With this power, he visualized that FDA could promote a scientifically grounded technological race to remove the carcinogens and other toxic fumes and possibly some or all of the nicotine from tobacco products. Within ten years, cigarettes might be virtually nicotine free, virtually safe, or both. Kids who took up smoking to ape their peers would soon tire of it and easily quit. Those smokers who smoke, as the tobacco marketers insist, "for the taste of fine tobacco," not a nicotine fix, could continue to smoke but live longer. Others would have a choice of FDA-regulated nicotine delivery devices (patches and inhalers) that could be designed and marketed by the tobacco companies—who were already developing better nicotine mousetraps in fierce, open competition with the drug companies. In time, addicted smokers hooked on highly toxic cigarettes would become a doubly endangered species. And, in America at least, Big Tobacco would shrink in size, profitability, and political power.

(Continues...)