“A statement of warning”
Our credulity would indeed be strained by an assumption that a fatal case of lung cancer could have developed . . . after the alleged smoking by Cooper of Camel cigarettes in reliance upon representations by the defendant in the various forms of advertising.
—Jury verdict on Cooper case, 1956
Certainly, living in America in the last half of the 20th century, one would have to be deaf, dumb and blind not to be aware of the asserted dangers, real or imagined, of cigarette smoking. Yet the personal choice to smoke is . . . the same kind of choice as the driver who downed the beers, and then the telephone pole.
—Open letter from the tobacco industry, 1988
In the summer of 1963, seven years after Graham’s death, a team of three men traveled to East Orange, New Jersey, to visit the laboratory of Oscar Auerbach. A careful man of few words, Auerbach was a widely respected lung pathologist who had recently completed a monumental study comparing lung specimens from 1,522 autopsies of smokers and nonsmokers.
Auerbach’s paper describing the lesions he had found was a landmark in the understanding of carcinogenesis. Rather than initiating his studies with cancer in its full-blown form, Auerbach had tried to understand the genesis of cancer. He had begun not with cancer but with its past incarnation, its precursor lesion—precancer. Long before lung cancer grew overtly and symptomatically out of a smoker’s lung, Auerbach found, the lung contained layer upon layer of precancerous lesions in various states of evolution—like a prehistoric shale of carcinogenesis. The changes began in the bronchial airways. As smoke traveled through the lung, the outermost layers, exposed to the highest concentrations of tar, began to thicken and swell. Within these thickened layers, Auerbach found the next stage of malignant evolution: atypical cells with ruffled or dark nuclei in irregular patches. In a yet smaller fraction of patients, these atypical cells began to show the characteristic cytological changes of cancer, with bloated, abnormal nuclei often caught dividing furiously. In the final stage, these cell clusters broke through the thin lining of the basement membranes and transformed into frankly invasive carcinoma. Cancer, Auerbach argued, was a disease unfolded slowly in time. It did not run, but rather slouched to its birth.
Auerbach’s three visitors that morning were on a field trip to understand that slouch of carcinogenesis as comprehensively as possible. William Cochran was an exacting statistician from Harvard; Peter Hamill, a pulmonary physician from the Public Health Service; Emmanuel Farber,* a pathologist. Their voyage to Auerbach’s laboratory marked the beginning of a long scientific odyssey. Cochran, Hamill, and Farber were three members of a ten-member advisory committee appointed by the U.S. surgeon general. (Hamill was the committee’s medical coordinator.) The committee’s mandate was to review the evidence connecting smoking to lung cancer so that the surgeon general could issue an official report on smoking and lung cancer—the long-due “statement of warning” that Graham had urged the nation to produce.
In 1961, the American Cancer Society, the American Heart Association, and the National Tuberculosis Association sent a joint letter to President Kennedy asking him to appoint a national commission to investigate the link between smoking and health. The commission, the letter recommended, should seek “a solution to this health problem that would interfere least with the freedom of industry or the happiness of individuals.” The “solution,” inconceivably, was meant to be both aggressive and conciliatory—clearly publicizing the link between cancer, lung disease, heart disease, and smoking, yet posing no obvious threat to the freedom of the tobacco industry. Suspecting an insolvable task, Kennedy (whose own political base in the tobacco-rich South was thin) quickly assigned it to his surgeon general, Luther Terry.
Soft-spoken, conciliatory, and rarely combative, Luther Terry was an Alabaman who had picked tobacco as a child. Enthralled from early childhood by the prospect of studying medicine, he had graduated from Tulane University in 1935, then interned in St. Louis, where he had encountered the formidable Evarts Graham in his surgical prime. Terry had moved to the Public Health Service after graduation, then to the NIH in 1953, where, at the Clinical Center, his laboratory had neighbored the clinic buildings where Zubrod, Frei, and Freireich had been waging their battle against leukemia. Terry had thus spent his childhood in the penumbra of tobacco and his academic life in the penumbra of cancer.
Kennedy’s assignment left Terry with three choices. He could quietly skirt the issue—thus invoking the wrath of the nation’s three major medical organizations. He could issue a unilateral statement from the surgeon general’s office about the health risks of tobacco—knowing that powerful political forces would quickly converge to neutralize that report. (In the early sixties, the surgeon general’s office was a little-known and powerless institution; tobacco-growing states and tobacco-selling companies, in contrast, wielded enormous power, money, and influence.) Or he could somehow leverage the heft of science to reignite the link between tobacco and cancer in the public eye.
Hesitantly at first, but with growing confidence—“a reluctant dragon,” as Kenneth Endicott, the NCI director, would characterize him—Terry chose the third path. Crafting a strategy that seemed almost reactionary at first glance, he announced that he would appoint an advisory committee to summarize the evidence on the links between smoking and lung cancer. The committee’s report, he knew, would be scientifically redundant: nearly fifteen years had passed since the Doll and Wynder studies, and scores of studies had validated, confirmed, and reconfirmed their results. In medical circles, the link between tobacco and cancer was such stale news that most investigators had begun to focus on secondhand smoke as a risk factor for cancer. But by “revisiting” the evidence, Terry’s commission would vivify it. It would intentionally create a show trial out of real trials, thus bringing the tragedy of tobacco back into the public eye.
Terry appointed ten members to his committee. Charles LeMaistre, from the University of Texas, was selected as an authority on lung physiology. Stanhope Bayne-Jones, the senior-most member of the committee, was a bearded, white-haired bacteriologist who had moderated several prior committees for the NIH. Louis Fieser, an organic chemist from Harvard, was an expert on chemical carcinogenesis. Jacob Furth from Columbia, a pathologist, was an authority on cancer genetics; John Hickam was a clinical specialist with a particular interest in heart and lung physiology; Walter Burdette, a Utah surgeon; Leonard Schuman, a widely respected epidemiologist; Maurice Seevers, a pharmacologist; William Cochran, a Harvard statistician; Emmanuel Farber, a pathologist who specialized in cell proliferation.
For nine sessions spanning thirteen months, the team met in a sparsely furnished, neon-lit room of the National Library of Medicine, a modern concrete building on the campus of the NIH. Ashtrays filled with cigarette butts littered the tables. (The committee was split exactly five to five among nonsmokers and smokers—men whose addiction was so deep that it could not be shaken even when deliberating the carcinogenesis of smoke.) The committee visited dozens of labs. Data, interviews, opinions, and testimonies were drawn from some 6,000 articles, 1,200 journals, and 155 biologists, chemists, physicians, mathematicians, and epidemiologists. In total, the trials used for the report encompassed studies on about 1,123,000 men and women—one of the largest cohorts ever analyzed in an epidemiological report.
Each member of the committee brought insight to a unique dimension of the puzzle. The precise and meticulous Cochran devised a new mathematical insight to judge the trials. Rather than privilege any particular study, he reasoned, perhaps one could use a method to estimate the relative risk as a composite number through all trials in the aggregate. (This method, termed meta-analysis, would deeply influence academic epidemiology in the future.) The organic chemist in Fieser was similarly roused: his discussion of chemicals in smoke remains one of the most authoritative texts on the subject. Evidence was culled from animal experiments, from autopsy series, from thirty-six clinical studies, and, crucially, from seven independent prospective trials.
Piece by piece, a highly incontrovertible and consistent picture emerged. The relationship between smoking and lung cancer, the committee found, was one of the strongest in the history of cancer epidemiology—remarkably significant, remarkably conserved between diverse populations, remarkably durable over time, and remarkably reproducible in trial after trial. Animal experiments demonstrating a causal link between smoking and lung cancer were inconclusive at best. But an experiment was not needed—at least not a laboratory experiment in the traditional sense of that word. “The word ‘cause,’” the report read, leaning heavily on Hill’s prior work, “is capable of conveying the notion of a significant, effectual relationship between an agent and an associated disorder or disease in the host. . . . Granted that these complexities were recognized, it is to be noted clearly that the Committee’s considered decision [was] to use the words ‘a cause,’ or ‘a major cause,’ . . . in certain conclusions about smoking and health.”
In that single, unequivocal sentence, the report laid three centuries of doubt and debate to rest.
Luther Terry’s report, a leatherbound, 387-page “bombshell” (as he called it), was released on January 11, 1964, to a room packed with journalists. It was a cool Saturday morning in Washington, deliberately chosen so that the stock market would be closed (and thus bolstered against the financial pandemonium expected to accompany the report). To contain the bomb, the doors to the State Department auditorium were locked once the reporters filed in. Terry took the podium. The members of the advisory committee sat behind him in dark suits with name tags. As Terry spoke, in cautious, measured sentences, the only sound in the room was the dull scratch of journalists furiously scribbling notes. By the next morning, as Terry recalled, the report “was front-page news and a lead story on every radio and television station in the United States and many abroad.”
In a nation obsessed with cancer, the attribution of a vast preponderance of a major cancer to a single, preventable cause might have been expected to provoke a powerful and immediate response. But front-page coverage notwithstanding, the reaction in Washington was extraordinarily anergic. “While the propaganda blast was tremendous,” George Weissman, a public relations executive, wrote smugly to Joseph Cullman, the president of Philip Morris, “. . . I have a feeling that the public reaction was not as severe nor did it have the emotional depth I might have feared. Certainly, it is not of a nature that caused prohibitionists to go out with axes and smash saloons.”
Even if the report had temporarily sharpened the scientific debate, the prohibitionists’ legislative “axes” had long been dulled. Ever since the spectacularly flawed attempts to regulate alcohol during Prohibition, Congress had conspicuously disabled the capacity of any federal agency to regulate an industry. Few agencies wielded direct control over any industry. (The Food and Drug Administration was the most significant exception to this rule. Drugs were strictly regulated by the FDA, but the cigarette had narrowly escaped being defined as a “drug.”) Thus, even if the surgeon general’s report provided a perfect rationale to control the tobacco industry, there was little that Washington would do—or, importantly, could do—to achieve that goal.
It fell upon an altogether odd backwater agency of Washington to cobble together the challenge to cigarettes. The Federal Trade Commission (FTC) was originally conceived to regulate advertisements and claims made by various products: whether Charlie’s liver pills truly contained liver, or whether a product advertised for balding truly grew new hair. For the large part, the FTC was considered a moribund, torpid entity, thinning in authority and long in the tooth. In 1950, for instance, the year that the Doll/Hill and Wynder/Graham reports had sent shock waves through academic medicine, the commission’s shining piece of lawmaking involved policing the proper use of the various words to describe health tonics, or (perhaps more urgently) the appropriate use of the terms “slip-proof” and “slip-resistant” versus “slip-retardant” to describe floor wax.
The FTC’s destiny changed in the summer of 1957. By the mid-1950s, the link between smoking and cancer had sufficiently alarmed cigarette makers that many had begun to advertise new filter tips on cigarettes—to supposedly filter away carcinogens and make cigarettes “safe.” In 1957, John Blatnik, a Minnesota chemistry teacher turned congressman, hauled up the FTC for neglecting to investigate the veracity of this claim. Federal agencies could not directly regulate tobacco, Blatnik acknowledged. But since the FTC’s role was to regulate tobacco advertisements, it could certainly investigate whether “filtered” cigarettes were truly as safe as advertised. It was a brave, innovative attempt to bell the cat, but as with so much of tobacco regulation, the actual hearings that ensued were like a semiotic circus. Clarence Little was asked to testify, and with typically luminous audacity, he argued that the question of testing the efficacy of filters was immaterial because, after all, there was nothing harmful to be filtered anyway.
The Blatnik hearings thus produced few immediate results in the late 1950s. But, having been incubated over six years, they produced a powerful effect. The publication of the surgeon general’s report in 1964 revived Blatnik’s argument. The FTC had been revamped into a younger, streamlined agency, and within days of the report’s release, a team of youthful lawmakers began to assemble in Washington to revisit the notion of regulating tobacco advertising. A week later, in January 1964, the FTC announced that it would pursue the lead. Given the link between cigarettes and cancer—a causal link, as recently acknowledged by the surgeon general’s report—cigarette makers would need to acknowledge this risk directly in advertising for their products. The most effective method to alert consumers about this risk, the commission felt, was to imprint the message onto the product itself. Cigarette packages were thus to be labeled with Caution: Cigarette Smoking Is Dangerous to Health. It May Cause Death from Cancer and Other Diseases. The same warning label was to be attached to all advertisements in the print media.
As news of the proposed FTC action moved through Washington, panic spread through the tobacco industry. Lobbying and canvassing by cigarette manufacturers to prevent any such warning label reached a febrile pitch. Desperate to halt the FTC’s juggernaut, the tobacco industry leaned on Abe Fortas, President Johnson’s friend and legal adviser (and soon to be Supreme Court justice), and Earle Clements, the former governor of Kentucky who had become Little’s replacement at the TIRC in 1959. Led by Clements and Fortas, tobacco makers crafted a strategy that, at first glance, seemed counterintuitive: rather than being regulated by the FTC, they voluntarily requested regulation by Congress.
The gambit had a deeply calculated logic. Congress, it was well-known, would inherently be more sympathetic to the interests of tobacco makers. Tobacco was the economic lifeblood of Southern states, and the industry had bribed politicians and funded campaigns so extensively over the years that negative political action was inconceivable. Conversely, the FTC’s unilateral activism on tobacco had turned out to be such a vexing embarrassment to politicians that Congress was expected to at least symbolically rap the wrist of the vigilante commission—in part, by lightening its blow to tobacco. The effect would be a double boon. By voluntarily pushing for congressional control, the tobacco industry would perform a feat of political acrobatics—a leap from the commission’s hostile fire to the much milder frying pan of Congress.
So it proved to be. In Congress, the FTC’s recommendation was diluted and rediluted as it changed hands from hearing to hearing and committee to subcommittee, leading to a denervated and attenuated shadow of the bill’s former self. Entitled the Federal Cigarette Labeling and Advertising Act (FCLAA) of 1965, it changed the FTC’s warning label to Caution: Cigarette smoking may be hazardous to your health. The dire, potent language of the original label—most notably the words cancer, cause, and death—was expunged. To ensure uniformity, state laws were also enfolded into the FCLAA—in effect, ensuring that no stronger warning label could exist in any state in America. The result, as the journalist Elizabeth Drew noted in the Atlantic Monthly, was “an unabashed act to protect private industry from government regulation.” Politicians were far more protective of the narrow interests of tobacco than of the broad interest of public health. Tobacco makers need not have bothered inventing protective filters, Drew wrote drily: Congress had turned out to be “the best filter yet.”
The FCLAA bill was a disappointment, but it galvanized antitobacco forces. The twisting of an unknown piece of trade law into a regulatory noose for tobacco was both symbolic and strategic: an unregulatable industry had been brought to heel—even if partially so. In 1966, a young attorney barely out of law school, John Banzhaf, pushed that strategy even further. Brash, self-confident, and iconoclastic, Banzhaf was lounging at home during the Thanksgiving holiday of 1966 (watching the omnipresent cigarette ads) when his mind raced to an obscure legal clause. In 1949, Congress had issued the “fairness doctrine,” which held that public broadcast media had to allow “fair” airtime to opposing viewpoints on controversial issues. (Congress had reasoned that since the broadcast media used a public resource—airwaves—they should reciprocate by performing a public function, by providing balanced information on controversial issues.) The doctrine was little known and little used. But Banzhaf began to wonder whether it could be applied to cigarette advertising. The FTC had attacked the disingenuousness of the tobacco industry’s advertising efforts. Could a parallel strategy be used to attack the disproportionality of its media presence?
In the early summer of 1967, Banzhaf dashed off a letter to the Federal Communications Commission (the agency responsible for enforcing the fairness doctrine) complaining that a New York TV station was dedicating disproportional airtime to tobacco commercials with no opposing antitobacco commercials. The complaint was so unusual that Banzhaf, then on a four-week cruise, expected no substantial response. But Banzhaf’s letter had landed, surprisingly, on sympathetic ears. The FCC’s general counsel, Henry Geller, an ambitious reformer with a long-standing interest in public-interest broadcasting, had privately been investigating the possibility of attacking tobacco advertising. When Banzhaf returned from the Bahamas, he found a letter from Geller:
“The advertisements in question clearly promote the use of a particular cigarette as attractive and enjoyable. Indeed, they understandably have no other purpose. We believe that a station which presents such advertisements has the duty of informing its audience of the other side of this controversial issue of public importance—that, however enjoyable, such smoking may be a hazard to the smoker’s health.”
With Geller’s consent, Banzhaf filed his case against the TV station in court. Predictably, tobacco companies protested vociferously, arguing that legal action of this sort would have a chilling effect on free speech and vowing to fight the case to its bitter end. Faced with the prospect of a prolonged court battle, Banzhaf approached the American Cancer Society, the American Lung Association, and several other public health organizations for support. In all cases, he was rebuffed.
Banzhaf chose to go to trial anyway. Dragged into court in 1968, he squared off against “a squadron of the best-paid lawyers in the country, row after row of them in pinstripe suits and cuff links”—and, to the utter shock of the tobacco industry, won his case. The court held that “proportional airtime” had to be given to protobacco and antitobacco advertising. The FCC and Geller leapt back into the arena. In February 1969, the commission issued a public announcement that it would rigorously police the “proportional airtime” clause and, given the public-health hazard of tobacco, seek to ban cigarette commercials from television altogether. Tobacco makers appealed and reappealed the Banzhaf decision, but the Supreme Court refused to hear the case, letting the decision stand.
The industry tried to mount an aggressive countercampaign. An unpublicized internal report drawn up in 1969 to respond to the looming threat of the FCC advertising ban concluded, “Doubt is our product, since it is the best means of competing with the ‘body of fact.’” But antismoking advocates had also learned the tricks of the trade; if tobacco sellers had “doubt” to sow into public minds, then tobacco opponents had something just as visceral: fear—in particular, fear of the ultimate illness. A barrage of antismoking commercials appeared on television. In 1968, a worn and skeletal-looking William Talman, a veteran actor and former smoker, announced in a prime-time advertisement that he was dying from lung cancer. Narcotized on painkilling medicines, his words slurring, Talman nonetheless had a clear message for the public: “If you do smoke—quit. Don’t be a loser.”
In late 1970, faced with the daily brunt of negative publicity, tobacco makers voluntarily withdrew cigarette advertising from broadcast media (thus nullifying the need for a proportional representation of antitobacco commercials). The last cigarette commercial was broadcast on television on January 1, 1971. At 11:59 p.m., on the first night of the New Year, the Virginia Slims slogan You’ve come a long way, baby flashed momentarily on TV screens, then vanished forever.
Talman did not live to see that final advertisement. He had already died in 1968 of lung cancer that had metastasized to his liver, bones, and brain.
The mid-1970s thus marked the beginning of the end of an extraordinary era for the tobacco industry. The surgeon general’s report, the FCLAA label warning, and the attack on cigarette advertising represented high-impact, sequential assaults on an industry once thought virtually impregnable. It is difficult to quantify the precise impact of any of these individual strategies, but these attacks coincided with a notable change in the trajectory of tobacco consumption: having risen unfailingly for nearly six decades, annual cigarette consumption in America plateaued at about four thousand cigarettes per capita.
The campaign against tobacco now needed one last strategy to consolidate these victories and drive them home to the public. “Statistics,” the journalist Paul Brodeur once wrote, “are human beings with the tears wiped off,” and thus far the antitobacco campaign had offered plenty of statistics, but with the human victims of tobacco somehow effaced. Litigation and regulation had occurred seemingly in the abstract; the FCLAA warning-label action and the fairness-doctrine case had been fought on behalf of cigarette “victims,” but faceless and nameless ones. The final rondo of legal assaults against tobacco would, at long last, introduce the American public to the real victims of tobacco, men and women who had quietly been succumbing to lung cancer while Congress had deliberated the pros and cons of attaching a nine-word sentence to a packet of cigarettes.
Rose Cipollone, born Rose DeFrancesco in New York, tasted her first cigarette as a teenager in 1942. She represented the midpoint of a steeply rising curve: between 1940 and 1944, the fraction of female smokers in the United States more than doubled, from 15 to 36 percent. That astonishing rise was the product of arguably the most successful targeted campaign ever launched in the history of American advertising—to persuade women to smoke. In this, tobacco rode on the back of a much deeper social change: in a world increasingly unsteady for women—with women juggling personal identity, child care, homemaking, and work—tobacco was marketed as a normalizing, steadying, even liberating force. Camel’s campaign depicted a naval officer firing a torpedo in the high seas, while his wife at home calmed her stormy nerves with a cigarette. “[It’s] a game only for steady nerves,” the copy ran. “But, then, what isn’t in these days—with all of us fighting, working, living at the highest tempo in years.” Rosie the Riveter, the quintessential symbol of wartime womanhood, was now recast as Rosie the Smoker, depicted in Chesterfield’s advertisements with a cigarette in hand. Smoking was a form of national service, and perhaps even Rosie’s perpetual composure in the face of intense pressure (“never twittery, nervous or jittery,” as the advertising song ran) could also be chalked up to the calming influence of her cigarette.
Like the eponymous Rosie looming larger than life on the twenty-foot billboards above her, Cipollone also chose to calm herself with Chesterfields. She began as a schoolgirl, rebelliously smuggling a few cigarettes here and there after classes. But as the economy soured and dipped in the 1930s, she dropped out of school, taking up jobs as a packer in a scarf factory and then as a billing clerk, and her habit escalated. Within just a few years, she had ramped up her consumption to dozens of cigarettes a day.
If Cipollone was ever nervous or jittery, it was in those rare moments when she confronted the health warnings about cigarettes. After her marriage, her husband, Anthony Cipollone, ran a quiet countercampaign, leaving her newspaper clippings that warned against the many hazards of smoking. Rose tried to quit, but relapsed each time with even greater dependency. When she ran out of cigarettes, she scoured the trash to smoke the burnt butts.
What bothered Cipollone was not her addiction, but, oddly, her choice of filters. In 1955, when Liggett introduced a new filter-tip cigarette named L&M, she switched brands expectantly, hoping that the advertised “milder, low tar, low nicotine” would be safer. The quest for the “safe cigarette” turned into a minor obsession for Cipollone. Like a serial monogamist of cigarettes, she bounced and rebounded from brand to brand, hoping to find the one that might protect her. In the mid-1960s, she switched to Virginia Slims, reasoning perhaps that a cigarette marketed exclusively for women might contain less tar. In 1972, she switched yet again to Parliaments, which promised a longer, recessed filter that might “insulate” a smoker’s lips from the smoking tip. Two years later, she switched again, this time to True cigarettes because, as she would later describe in court to an astounded jury, “The doctor recommended them. . . . He said to me, ‘You smoke and you might as well smoke these,’ and he took out of his coat pocket a package of cigarettes.”
In the winter of 1981, Cipollone developed a cough. A routine chest X-ray to evaluate the cough revealed a mass in the upper lobe of her right lung. A surgical biopsy revealed lung cancer. In August 1983, metastatic lung cancer was found all over Cipollone’s body—malignant masses in her lungs, bones, and liver. She started chemotherapy, but had a poor response. As the cancer advanced into her marrow and burrowed into her brain and spinal cord, she was confined to bed, with shots of morphine to relieve her pain. Cipollone died on the morning of October 21, 1984. She was fifty-eight years old.
Marc Edell, a New Jersey attorney, heard of Cipollone’s diagnosis eleven months before her death. Ambitious, canny, and restless, Edell possessed a deep knowledge of tort litigation (he had defended asbestos manufacturers against product-liability suits in the 1970s) and was looking for an iconic “victim” of cigarette smoke to launch a legal attack on tobacco. In the summer of 1983, Edell thus traveled to the sleepy suburban town of Little Ferry to visit Rose Cipollone and her family. Realizing that she was dying, he urged the Cipollones to file their suit against the three cigarette manufacturers whose products Rose had extensively used—Liggett, Lorillard, and Philip Morris.
Edell’s case, filed in 1983, was ingeniously crafted. Previous cases against tobacco companies had followed a rather stereotypical pattern: plaintiffs had argued that they had personally been unaware of the risks of smoking. Cigarette makers had countered that the victims would have had to be “deaf, dumb and blind” not to have known about them, and juries had universally sided with cigarette makers, acknowledging that the packaging labels provided adequate warnings for consumers. For the plaintiffs, the record was truly dismal. In the three decades between 1954 and 1984, more than three hundred product-liability cases had been launched against tobacco companies. Sixteen of these cases had gone to trial. Not a single case had resulted in a judgment against a tobacco company, and not one had been settled out of court. The tobacco industry had all but declared absolute victory: “Plaintiff attorneys can read the writing on the wall,” one report crowed, “they have no case.”
Edell, however, refused to read any writing on any walls. He acknowledged openly that Rose Cipollone was aware of the risks of smoking. Yes, she had read the warning labels on cigarettes and the numerous magazine articles cut out so painstakingly by Tony Cipollone. Yet, unable to harness her habit, she had remained addicted. Cipollone was far from innocent, Edell conceded. But what mattered was not how much Rose Cipollone knew about tobacco risks; what mattered was what cigarette makers knew, and how much of the cancer risk they had revealed to consumers such as Rose.
The argument took the tobacco companies by surprise. Edell’s insistence that he needed to know what cigarette makers knew about smoking risks allowed him to ask the courts for unprecedented access to the internal files of Philip Morris, Liggett, and Lorillard. Armed with powerful legal injunctions to investigate these private files, Edell unearthed a saga of epic perversity. Many of the cigarette makers had not only known about the cancer risks of tobacco and the potent addictive properties of nicotine, but had also actively tried to quash internal research that proved it. Document after document revealed frantic struggles within the industry to conceal risks, often leaving even its own employees feeling morally queasy.
In one letter, Fred Panzer, a public relations manager at the Tobacco Research Institute, wrote to Horace Kornegay, its president, to explain the industry’s three-pronged marketing strategy—“creating doubt about the health charge without actually denying it, advocating the public’s right to smoke without actually urging them to take up the practice [and] encouraging objective scientific research as the only way to resolve the question of health hazard.” In another internal memorandum (marked “confidential”), the assertions were nearly laughably perverse: “In a sense, the tobacco industry may be thought of as a specialized, highly ritualized and stylized segment of the pharmaceutical industry. Tobacco products, uniquely, contain and deliver nicotine, a potent drug with a variety of physiological effects.”
Pharmacological research on nicotine left no doubt about why women such as Rose Cipollone found it so difficult to quit tobacco—not because they were weak-willed, but because nicotine subverted will itself. “Think of the cigarette pack as a storage container for a day’s supply of nicotine,” a researcher at Philip Morris wrote. “Think of the cigarette as a dispenser for a dose unit of nicotine. . . . Think of a puff of smoke as the vehicle of nicotine.”
In a particularly memorable exchange, Edell quizzed Liggett’s president about why the company had spent nearly $5 million to show that tobacco could cause tumors to sprout on the backs of mice, and then systematically chose to ignore any implications for carcinogenesis in humans:
Edell: What was the purpose of this [experiment]?
Dey: To try to reduce tumors on the backs of mice.
Edell: It had nothing to do with the health and welfare of human beings? Is that correct?
Dey: That’s correct. . . .
Edell: And this was to save rats, right? Or mice? You spent all this money to save mice the problem of developing tumors?
Exchanges such as this epitomized the troubles of the tobacco industry. As the cigarette industry mavens muddled their way through Edell’s cross-examination, the depth of deception made even the industry’s own attorneys cringe in horror. Cover-ups were covered up with nonsensical statistics; lies concealed within other lies. Edell’s permission to exhume the internal files of tobacco makers created a historic legal precedent, allowing others to potentially raid that same cabinet of horrors to pull out their own sooty exhibits for future tort cases.
After four long years of legal wrangling, the Cipollone cancer trial appeared before the court in 1987. Despite the hopes and predictions of many observers, the verdict was a terrible disappointment for Edell and Cipollone’s family. The jury found Rose Cipollone 80 percent responsible for her cancer. Liggett, the maker of the brand that she had smoked before 1966 (i.e., before the warning labels had been mandated), was assigned the rest of the responsibility—20 percent. Philip Morris and Lorillard got off scot-free. The jury awarded Anthony Cipollone $400,000 in damages—barely enough to cover even the clerical costs of four years of obsessive litigation. If this was counted as a win, then, as the tobacco industry pointed out gleefully, it was the very definition of a Pyrrhic victory.
Yet the real legacy of the Cipollone case had little to do with legal victories or losses. Lampooned in court as a weak-willed, ill-informed, and dim-witted addict unaware of the “obvious” dangers of tobacco, Rose Cipollone nonetheless turned into a heroic icon of a cancer victim battling her disease—even from her grave.
A flurry of cases followed the Cipollone case. The tobacco industry defended itself vigorously against these cases, reflexively waving the warning labels on cigarette packets as proof that their liability was negligible. But the precedents set by these cases fueled even more tort suits. Demonized, demoralized, and devastated by the negative publicity, cigarette makers found themselves increasingly beleaguered and increasingly the butt of blame and liability.
By 1994, the per capita consumption of cigarettes in America had dropped for twenty straight years (from 4,141 in 1974 to 2,500 in 1994), representing the most dramatic downturn in smoking rates in history. It had been a long and slow battle of attrition. No intervention had single-handedly decimated tobacco, but the cumulative force of scientific evidence, political pressure, and legal inventiveness had worn the industry down over a decade.
Yet, old sins have long shadows, and carcinogenic sins especially so. The lag time between tobacco exposure and lung cancer is nearly three decades, and the lung cancer epidemic in America will have an afterlife long after smoking incidence has dropped. Among men, the age-adjusted incidence of lung adenocarcinoma, having peaked at 102 per 100,000 in 1984, dropped to 77 in 2002. Among women, though, the epidemic still runs unabated. The stratospheric rise of smoking among women in Rose Cipollone’s generation is still playing itself out in the killing fields of lung cancer.
Twenty-seven years have passed since Marc Edell filed his unusual case in the New Jersey courtroom, and tort lawsuits against tobacco companies have now grown into a deluge. In 1994, in yet another landmark case in the history of tobacco litigation, the state of Mississippi filed suit against several tobacco companies seeking to recover over a billion dollars of health-care costs incurred by the state from smoking-related illnesses—including, most prominently, lung cancer. (Michael Moore, the attorney general, summarized the argument for tobacco companies: “You caused the health crisis; you pay for it.”) Several other states then followed, notably Florida, Texas, and Minnesota.
In June 1997, facing a barrage of similar suits, tobacco companies proposed a global agreement. In 1998, forty-six states thus signed the Master Settlement Agreement (MSA) with four of the largest cigarette manufacturers—Philip Morris, R. J. Reynolds, Brown & Williamson, and Lorillard Tobacco Company. (Since 1998, an additional forty-seven cigarette manufacturing companies have joined the agreement.) The agreement includes strong restrictions on cigarette advertising, disbands trade associations and industry lobby groups, allows for free access to internal research documents, and proposes the creation of a national forum to educate the public on the health hazards of tobacco. The MSA represents one of the largest liability settlements ever reached, and, perhaps more profoundly, the most public admission of collusion and guilt in the history of the tobacco industry.
Does the MSA constitute Rose Cipollone’s long-awaited legal victory over tobacco? In some respects, quite precisely not. In a perverse recapitulation of the FCLAA “warning labels act” of the 1970s, in fact, the agreement likely creates yet another safe harbor for the tobacco industry. By granting relative protection from future legal action, by restricting cigarette advertising, and by allowing its signatory companies to fix prices, the agreement provides a virtual monopoly to the companies that have signed the MSA. Small independent manufacturers dare not enter or compete in the business, leaving big tobacco to become even bigger tobacco. The influx of annual settlement payments from cigarette makers creates “client-states” that depend on this money to fund escalating medical costs. Indeed, the real cost of the agreement is borne by addicted smokers who now pay more for cigarettes, and then pay with their lives.
Nor has the MSA signaled the death of the industry in a more global sense; beleaguered in America, the Marlboro Man has simply sought out new Marlboro countries. With their markets and profits dwindling and their legal costs mounting, cigarette manufacturers have increasingly targeted developing countries as new markets, and the number of smokers in many of these nations has risen accordingly. Tobacco smoking is now a major preventable cause of death in both India and China. Richard Peto, an epidemiologist at Oxford and a close collaborator of Richard Doll’s (until Doll’s death in 2005), recently estimated that the number of smoking-related deaths among adults in India would rise to 1 million per year in the 2010s and continue to rise in the next decade. In China, lung cancer is already the leading cause of death, attributable to smoking in men.
This steady assault of tobacco on the developing world has been accompanied by bold political maneuvering backstage. In 2004, tobacco companies signed a barely publicized agreement with the Ministry of Health in Mexico that provides generous “contributions” from the tobacco makers to a public health-insurance program in return for sharply reduced regulations on cigarette-packet warnings and advertisements—in effect “robbing Pedro to pay Paolo,” as a recent editorial noted. In the early 1990s, a study noted, British American Tobacco signed a similar agreement with the government of Uzbekistan to establish a production monopoly, then lobbied vigorously to overturn recent laws that banned tobacco advertising. Cigarette smoking grew by about 8 percent a year in Uzbekistan after the BAT investment, and cigarette sales increased by 50 percent between 1990 and 1996.
In a recent editorial in the British Medical Journal, Stanton Glantz, an epidemiologist at the University of California, San Francisco, described this as yet another catastrophe in the making: “Multinational cigarette companies act as a vector that spreads disease and death throughout the world. This is largely because the tobacco industry uses its wealth to influence politicians to create a favourable environment to promote smoking. The industry does so by minimising restrictions on advertising and promotion and by preventing effective public policies for tobacco control such as high taxes, strong graphic warning labels on packets, smoke-free workplaces and public places, aggressive countermarketing media campaigns, and advertising bans. Unlike mosquitoes, another vector of worldwide disease, the tobacco companies quickly transfer the information and strategies they learn in one part of the world to others.”
It is difficult for me to convey the range and depth of devastation that I witnessed in the cancer wards that could be directly attributed to cigarette smoking. An ebullient, immaculately dressed young advertising executive who first started smoking to calm his nerves had to have his jawbone sliced off to remove an invasive tongue cancer. A grandmother who taught her grandchildren to smoke and then shared cigarettes with them was diagnosed with esophageal cancer. A priest with terminal lung cancer swore that smoking was the only vice that he had never been able to overcome. Even as these patients were paying the ultimate price for their habit, the depth of denial in some of them remained astonishing; many of my patients continued to smoke, often furtively, during their treatment for cancer (I could smell the acrid whiff of tobacco on their clothes as they signed the consent forms for chemotherapy). A surgeon who practiced in Britain in the seventies—a time when lung cancer incidence was ascending to its macabre peak—recalled his first nights in the wards when patients awoke from their cancer operations and then walked like zombies through the corridors begging the nurses for cigarettes.
Yet despite the evident seriousness of this addiction and its long-term consequences, tobacco consumption continues relatively unfettered even today. Smoking rates, having plateaued for decades, have begun to rise again in certain demographic pockets, and lackluster antismoking campaigns have lost their grip on public imagination. The disjunction between the threat and the response is widening. It remains an astonishing, disturbing fact that in America—a nation where nearly every new drug is subjected to rigorous scrutiny as a potential carcinogen, and even the bare hint of a substance’s link to cancer ignites a firestorm of public hysteria and media anxiety—one of the most potent and common carcinogens known to humans can be freely bought and sold at every corner store for a few dollars.