Tobacco Foes Win a Vast Memo Arsenal
In Minnesota's $6.6 billion settlement, Big Tobacco agrees to curb ads, fund a document 'library.'
NEW YORK AND ST. PAUL, MINN. — When Norwood "Woody" Wilner takes on Big Tobacco in a Jacksonville, Fla., court today, he thinks he has an unexpected edge.
He's found a document that he says will persuade a jury that the Brown & Williamson Tobacco Co. tried to hide what it knew about the risks of smoking.
If not for Minnesota's just-concluded battle with the tobacco industry, Mr. Wilner might never have gotten access to a treasure trove of internal tobacco company memos between lawyers and lab scientists.
At $6.6 billion, Minnesota's settlement is not the biggest to date. But the nature of the agreement means several states that have already settled similar cases are likely to get more money. And Minnesota's case pried loose millions of documents that opponents, like Mr. Wilner, will mine in dozens of pending lawsuits. "We look forward to peering into the smoky corridors of this industry," says Wilner.
Getting information out was one of the main reasons why Minnesota's Attorney General Hubert Humphrey III waited to settle his state's lawsuit against the tobacco companies, which fought the release of company documents all the way to the US Supreme Court - and lost.
It's also why Mr. Humphrey opposed the $368 billion national settlement agreed to by 40 other attorneys general last year. The Minnesota settlement is seen as an enormous victory for Humphrey - who is running for governor - and possibly a catalyst to get national legislation through Congress.
In addition to the $6.6 billion promised to the state and Blue Cross and Blue Shield of Minnesota, the state's partner in the suit, the agreement could become the most important development yet in modifying the marketing of cigarette companies.
"This is another major turning point in this battle," says Cliff Douglas, head of Tobacco Control Law and Policy Consulting in Ann Arbor, Mich.
Under the terms of the agreement, the tobacco companies have agreed not to market to children (they say they already don't), agreed not to pay to have their products used in the movies (they haven't done this in years), and would end their use of promotional items such as T-shirts or hats within the state. Tobacco companies will also end their use of billboards, bus ads, and direct marketing in Minnesota.
THE tobacco industry agreed to a ban on lobbying against regulations aimed at reducing youth smoking. And it agreed to more disclosure of its lobbying efforts.
"The Minnesota case will provide a blueprint for other states to follow," says Bill Novelli, president of Campaign for Tobacco-Free Kids in Washington. There are 37 states with lawsuits pending against the tobacco firms.
The tobacco companies say they settled this case because they didn't think they could get a fair trial. An R.J. Reynolds Tobacco Co. official said the company felt it had a "loaded gun to its head."
Antitobacco advocates say the settlement will make congressional action more likely. "The fact the tobacco companies chose to settle with the state rather than risk the fate of a jury's decision against an industry that deliberately marketed to kids brightens the outlook for a comprehensive Senate bill," says Arizona's Sen. John McCain, (R), sponsor of the bill. It may also loosen up resistance from the antitobacco groups. "Congress couldn't act until the full truth was out - Minnesota accomplished that," says Matthew Myers at the Campaign for Tobacco Free Kids.
The Minnesota settlement is likely to make both past and future settlements more expensive. Under the national tobacco agreement proposed last June, Minnesota would have received about $4 million. But this settlement came in at $6.6 billion. When Florida, Texas, and Mississippi settled their individual state cases, they didn't go over the money allocated under the national agreement. Under the terms of their settlement, since Minnesota got more, they are entitled to to a higher settlement - an estimated $15 billion between the three states.
Under the terms of the Minnesota agreement, the tobacco industry has also agreed to shutter the Council for Tobacco Research, an industry-funded, New York-based group known for studies that cast doubt on the health risks of smoking.
In addition to the tens of millions of documents released under Supreme Court order, Humphrey also got the industry to agree to open up and pay for a London warehouse that has 33 million documents detailing the inner workings of the industry. It is likely to become a library for litigants. "They have really changed the playing field," says Wilner, whose firm has several cases pending against the tobacco industry. Wilner is the only lawyer to win a private antismoking case in court against the industry. The case is being appealed.
Antitobacco lawyers are working to spread the massive amounts of new information. They have loaded the thousands of documents presented in the Minnesota case on a CD-ROM. "It makes it much easier for other people to bring these cases," says Dick Daynard, head of the Tobacco Products Liability Project at Northeastern University's School of Law.
In fact, the tobacco industry is now beset by scores of new lawsuits. According to Mr. Daynard, lawyers are filing a suit per day against the giant tobacco companies. And, some of the lawsuits are being filed by large organizations. Last week, a group of 34 independent Blue Cross and Blue Shields filed federal lawsuits against the major tobacco companies. Daynard believes the victory by the Minnesota Blue will encourage other health providers to file suit as well.
Despite praise for Humphrey nationally, the settlement is a source of political controversy in Minnesota.
After four years of haggling with Big Tobacco, it now appears that Humphrey, the leading Democrat-Farmer-Labor Party candidate for governor, faces new squabbles over how to spend the money. During the trial, a Republican state lawmaker tried and failed to pass an amendment to a budget bill ordering that settlement funds be placed in the general fund and used only for tax relief.
"One of the shortcomings of the trial and the attorney general's involvement is that there haven't been communications with the governor and the legislative leadership," says state Sen. Doug Johnson (DFL), another candidate in the gubernatorial race.
State Senate majority Leader, Roger Moe (DFL), who would like to see the funds put into several trusts including one for children, says there is no need to hurry. "Right now we're acting like children waiting for their inheritance."