THOSE who would limit the power and influence of the tobacco industry are taking a new tack against cigarette companies: Lawsuits over secondhand smoke. These antismoking advocates believe they will now be more successful in court than with product-liability claims because the plaintiffs for the most part, will be nonsmokers.
A National Law Journal report contends: ``The battle over secondhand smoke is seen as more winnable in that juries may be more sympathetic to nonsmoker plaintiffs because they generally did not choose to be exposed to cigarette smoke.''
An Environmental Protection Agency study, describing the danger to nonsmokers of inhaling cigarette smoke, has encouraged litigants against cigarette companies. Among them is the Boston-based Tobacco Products Liability Project (TPLP), which has supported suits against the industry with mixed success over recent years.
Northeastern University law professor Richard Daynard, who heads TPLP, says his group will emphasize the legal rights of nonsmokers. He suggests that the courts will one day view tobacco in the same way as asbestos - as a major workplace hazard.
So far, few tobacco liability claims have survived major court tests. Industry arguments have prevailed that those who smoke do so of their own volition.
Warning labels on cigarette packs and ``negative effects'' advertising, required by the 1966 Cigarette Labeling and Advertising Act, have, for the most part, shielded manufacturers from successful damage claims filed by smokers and their families.
There have been exceptions, however, and state courts have allowed several lawsuits, based on the premise that warning labels may not have enough impact on risks to smokers and that tobacco companies must bear a greater financial burden than they do now for the death of a smoker.
New Jersey's state Supreme Court took that position this summer when it reviewed the lawsuit of a widow whose husband smoked cigarettes for more than 40 years and died from what was medically diagnosed as lung cancer.
A court summary of the ruling said: ``A New Jersey jury could decide that a cigarette manufacturer, rather than an injured party, ought to bear the cost of injuries that could have been prevented with a more detailed label than that required under the Cigarette Act.''
So holding, the state high court jurists opened the way for New Jersey citizens to present liability claims against tobacco manufacturers despite warning labels.
In 1988, New Jersey became the only state to award cash damages to the family of a smoker who died. This award was later struck down by a federal appeals court.
Regardless of the success or failure of liability claims of smokers or their surviving families and litigation involving secondhand smoke, the issue gets down to the avariciousness of tobacco companies and the vulnerability of tobacco users. There is no law against greed, nor can there be. Cigarette manufacturers point out that they participate in various kinds of civic education and service, unrelated to their product. Their product, however, has no redeeming social value and has been proved detrimental to physical health. Government, consequently, has a right to oversee its use, require clear warnings of its dangers, and to hold its makers fiscally responsible for injury or death.
Just as important, free-thinking individuals have a right, indeed a societal responsibility, to rid themselves of the enslavement to tobacco. They owe it to themselves and to their families to be free of anything that would encroach on their well-being. Smoking certainly falls into this category.