Tobacco's Twilight

With a tone of indignation, the tobacco companies last week walked away from efforts to forge an agreement with the federal government. "We regret," said the Philip Morris company, "that an opportunity to resolve decades-old controversies surrounding tobacco has been lost."

In fact, that opportunity is not lost. History is still very much on the side of landmark legislation to restrain cigarette sales, put nicotine-laden products under regulatory control, and launch a major campaign to reduce teen smoking.

Congress can also include measures to ban advertising aimed at the young, and it can try to impose penalties on the tobacco industry if youth smoking doesn't decrease in the years ahead. Those steps, however, will face tough legal challenges related to constitutional issues of free speech (advertising) and due process of law (punishment without trial).

But on the advertising front, at least, we'd urge Congress to move ahead. Past industry practices have been abhorrent. Strategies to hook young smokers have emerged from once-secret company files. The public's interest in restricting tobacco promotions could well outweigh the companies' free-speech argument.

Key reasons the tobacco firms decided to forsake Capitol Hill were (1) Congress's veer away from providing them with immunity from future lawsuits, and (2) the move toward higher penalties on the industry and higher taxes on cigarettes. Both those items had been dealt with to the industry's satisfaction in the agreement concluded last June between tobacco firms and state attorneys general.

Tobacco lobbyists have striven for months to rally congressional support behind that settlement - which was, in its own right, a landmark. If the settlement's immunity from future class-action lawsuits had been accepted, and its $368.5 billion in penalties been deemed adequate, Philip Morris, RJR Nabisco, and others would have signed on to advertising bans and a requisite 60 percent reduction in youth smoking in the next decade.

But it quickly became clear that trade-off wouldn't hold. The political clout once exercised by tobacco has largely evaporated. At the same time, a determination to hold the industry responsible for the damage caused by its products has grown. Legislators, such as Senate Commerce Committee chairman John McCain (R) of Arizona, want more from the industry than it's willing to give voluntarily.

Big Tobacco may be weakened politically, but it still has vast financial resources. The companies are vowing to launch an advertising offensive to undermine the legislation shaped by Mr. McCain's committee, which would extract more than $516 billion in penalties from the industry over the next quarter century. As RJR Nabisco chairman Steven Goldstone put it, the companies want to keep serving the millions of customers who "depend" on their products.

Breaking that dependency is what the bargaining and the controversy is really about. Without an addictive hold on the public, there is no Big Tobacco. The process of loosening its grip on Americans has begun, and Congress should stay the course.

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