Tobacco deal: boost for states, but it may not curb smoking

Those unsightly billboards reminding smokers it's time to light up will be gone. So will those smoking ads atop taxis. But the Marlboro man will keep on puffing. And those hopped-up cars will still compete for a Winston Cup.

These changes - and nonchanges - are all part of a national tobacco settlement announced by eight attorneys general in Washington yesterday. The deal could ultimately cost the tobacco companies $206 billion, depending on how many other states sign on.

That would make it the largest civil settlement in US history. But most health-care experts think it will have a modest effect on smoking rates since the cost of a pack of cigarettes may rise by only 35 cents.

Although this is designed to be a national agreement between the states and the tobacco industry, it will not require the approval of Congress - unlike an agreement that failed to pass six months ago. Instead, analysts believe it may preclude any future effort by Congress.

"This presents the perfect excuse for the industry's supporters to say the tobacco problems have already been taken care of, the states have done everything," says Cliff Douglas, head of Tobacco Control, Law and Policy Consulting in Ann Arbor, Mich.

But some long-standing issues are not in the settlement. There is no attempt to get the tobacco industry to accept Food and Drug Administration governance. Also, the industry will not receive any protection from class-action lawsuits.

The attorneys general of 38 other states (four states settled earlier) have until Friday to join in the settlement or continue their own lawsuits. Most states are expected to sign on. They will receive "free money" without any strings attached. In the case of California and New York, the total could be as much as $24 billion each over the 25 years of the agreement.

"This is a great agreement for states who have not done much work and are not planning to do much work," says Richard Daynard, head of Northeastern University's Tobacco Liability Institute in Boston.

Among the states that may decide to continue their cases are Maryland, Wisconsin, and Massachusetts. "Those who have prepared their cases and gotten favorable rulings, those states would do better from a financial and public-health point of view if they went forward with their cases," says Mr. Daynard.

But one negotiator, Gale Norton, Colorado attorney general, says the deal is better than the states could have won in litigation. "Our settlement includes states who have not filed cases and those who have already had their cases dismissed."

IN WASHINGTON, key players are withholding judgment primarily because they've yet to see the proposed settlement. Congress has been in recess since the election, and most members are focused on the leadership vote that takes place tomorrow. But the limited scope of the agreement leaves a large set of questions for lawmakers to wrestle with.

One key issue is money. Several states have sued for reimbursement of Medicaid expenses. If those states win a large settlement, the US government will get a share. Before the recess, Sen. Kay Bailey Hutchinson (R) of Texas introduced a bill that would have allowed the states to keep the money, but it wasn't acted upon.

Many members of the public-health community quickly mobilized to fight the proposed settlement. They argued that such an important issue should have more than a week for public comment. "If this is such a threshold issue, why is there such a circumstantial opportunity for review?" asks Mr. Douglas.

The tight deadline is necessary because 10 of the attorneys general leave office in January. To conclude this deal will require consent decrees and other legal work, says Ms. Norton. "Additional public comment would not change the terms of the settlement."

Joe Cherner, a New York activist, is one of those cranking up grass-roots support. He is particularly angry over the makeup of the AGs who negotiated the deal. They included the North Carolina attorney general, a state that is not even suing the industry, and three attorneys general who were not reelected. The leader of the effort was Christine Gregoire, attorney general for Washington State. Her case is currently at trial. "I think she did it this way because she has a weak case," says Mr. Cherner.

Ms. Gregoire was not available for comment. But Norton says her own suit was successful in its first legal round. "Yet I will get more from this settlement than from litigating," she says.

THE FINE PRINT

The proposed $206 billion deal between four tobaccomakers and 46 states is the largest US civil settlement ever. It is expected to:

* Provide $1.4 billion over five years to fund antismoking campaigns.

* Provide $250 million over 10 years to establish a national public-health foundation for research.

* Ban cigarette advertising on billboards, buses, and taxis.

* Ban promotional merchandise featuring cigarette brands.

* Ban marketing that targets children.

* Not give tobacco companies protection from class-action lawsuits for past conduct.

Source: wire services