Confronting Americas Smoking Pandemic, Part 4: 2000–2016

Even so, the majority opinion, written by Justice Sandra Day O’Connor, holds that the FDA “has amply demonstrated that tobacco use, particularly among children and adolescents, poses perhaps the single most significant threat to public health in the United States.[3] An effort by Senator Bill Frist (Republican from Tennessee), a heart surgeon, to introduce legislation overturning the Supreme Court decision, quickly fizzles.[6] A bill introduced in 2008 by congressman Henry A. Waxman (D-Calif.) to give the FDA the power to regulate tobacco products was approved overwhelmingly by the House of Representatives, which passed the bill by a vote of 326 to 102.[7] In 2000, Advertising Age’s special century-end edition commemorated advertising in the 20th century. As shown in the title slide, The Marlboro Man was named the century’s top advertising icon of the 20th century-beating out Ronald McDonald.

According to the Sun-Sentinel article, “tobacco companies said they could afford $150 million to $375 million” in punitive damage awards. Although the verdict is overturned on appeal, individual plaintiff cases are permitted. Upwards of 9,500 cases are filed by the 2007 deadline, most of which are dismissed. By 2015, of the approximately 180 individual cases tried in Florida courts, plaintiffs have won more than half, resulting in judgments of more than $500 million. The 400 cases filed in federal court are settled by the major cigarette companies for $100 million in February 2015. More than 3,000 cases remain.[9-14] Also in this year, Congress extends the airline smoking ban to all domestic and international flights, and The American Legacy Foundation launches a national “truth” youth anti-smoking campaign (http://www.thetruth.com).

The states and public health experts had assumed that in order for the companies to pay an estimated $206 billion to the states over a period of 25 years to recoup the cost of caring for sick smokers, the companies would need to raise cigarette prices, resulting in a decline in smoking. However, no one counted on the proliferation of cheap cigarettes made by dozens of small companies and sold for as little as $1 a pack (versus $3 for Marlboro) in gas stations and convenience stores. Together, discount brands like Bailey’s, GT One, Patriot, and Money have grabbed 4% of the US retail cigarette market, up from 1% in 1997, and current cigarette consumption is declining by just 1% to 2% per year after dropping by 7% in 1999.

The company retains the name Philip Morris USA for its domestic cigarette operations.

The phenomenal rise in popularity of NASCAR from a southern tradition to a national sport has made it one of the most watched programs on television. As the result of the Master Settlement Agreement between the tobacco industry and the state attorneys general, tobacco sports sponsorships were severely restricted, and the Winston Cup Series was the last major national sports sponsorship in the US to bear the name of a cigarette brand.[16]

In 2007 the American Medical Association and the American Heart Association resolve to hold their conferences only in cities that have enacted such smoking bans.[19] By 2008, a total of 22 states have banned smoking in restaurants and bars.[19] In 2011, New York City expands its smoking ban to include beaches and parks[20]; an indoor ban on electronic cigarettes is added in 2013.[21]

Ruling in a class action suit brought in Madison County, Illinois, against Philip Morris, which alleges that the company’s marketing of “light” cigarettes duped smokers into believing the cigarettes were not dangerous, Judge Nicholas Byron awarded consumers $10.1 billion, including $3 billion in punitive damages.[22] Although the verdict is overturned in 2005, in 2016 a longshot appeal is made to the US Supreme Court. In October, former Texas Attorney General Dan Morales, who oversaw the largest individual state lawsuit against the tobacco industry-resulting in a $17.3 billion settlement in 1998-is sentenced to 4 years in federal prison for mail fraud and tax evasion in connection with the case. He is found to have backdated a contract in an attempt to funnel $520 million of the $3.3 billion set aside for legal fees to a law school friend who had done no work on the case.

In 2014, RAI, whose prominent brands of cigarettes include Camel and Pall Mall, acquires Lorillard, the maker of Newport and the third leading cigarette manufacturer; the acquisition boosts RAI’s market share to 35.3%, compared with Marlboro-maker Altria’s 46.7%. Newport, with 12.2% of market share, is the leading menthol brand and the second best-selling cigarette, after Marlboro’s 40.2% share.[24]

An increasing number of companies are refusing to hire persons who smoke and are firing those who do, even if they only smoke at home. An example is Weyco, an insurance benefits administrator in Michigan, which in January begins testing its 200 employees for smoking.[25] In 2005, there are 20 states with no laws preventing employers from firing workers who smoke.[26] By 2006 in the US, 9% of public housing authorities have enacted bans on smoking by tenants.[27] In 2007 the Centers for Disease Control and Prevention reports that 84% of US households with no smokers do not permit smoking in the home.[28] In 2009, the Institute of Medicine concludes that exposure to secondhand smoke significantly increases the risk of a heart attack among both smokers and nonsmokers, and that a reduction in heart problems begins quickly after smoking bans go into effect.[29]

Judge Kessler notes “substantial evidence establishes that Defendants have engaged in and executed-and continue to engage in and execute-a massive 50-year scheme to defraud the public, including consumers of cigarettes, in violation of RICO.”[24] In 2005, Sharon Y. Eubanks, lead attorney of the Justice Department team that prosecuted the racketeering lawsuit against the tobacco companies, alleged that political appointees of the Bush administration repeatedly ordered her to take steps that weakened the government’s case.

In 2001, a group called Smoke Free Movies (smokefreemovies.com) launched a series of paid advertisements aimed at legislators and entertainment industry executives, advocating that all movies depicting tobacco use receive an “R” rating. In 2007, under pressure from public health groups and state attorneys general, the Motion Picture Association of America (MPAA) announces that along with violence, sex, and adult language, smoking will be a factor in deciding whether a movie will have a PG-13 rating or an R rating. In 2013, displeased that a depiction of tobacco use in and of itself does not warrant an R rating, Smoke Free Movies claims in an advertisement that “MPAA member companies…have delivered more than a million adolescents to the US tobacco industry in the past six years,” a third of whom will die from smoking.

A longstanding claim by Philip Morris, including in litigation, is that nicotine is not addictive and that quitting smoking is not difficult.[25] In contrast, according to the US Public Health Service, “[t]obacco dependence is a chronic disease that often requires repeated intervention and multiple attempts to quit.” Moreover, currently 70% of the 46 million smokers in the US report that they want to stop, and about 45% report that they try to quit each year. However, only 4% to 7% succeed.

The allegations by Tobacco-Free Kids also assert that an Indie Rock Universe insert in Rolling Stone magazine with a cartoon look and sponsored by Reynolds’ Camel brand is reminiscent of the company’s controversial Joe Camel cartoon mascot of the 1980s and 1990s. The magazine acknowledges that 13% of its readers are between 12 and 17 years of age. In 2016, however, advertisements for Reynolds American’s Newport, Camel, and American Spirit brands appear frequently in Sports Illustrated, ESPN The Magazine, EBONY, TIME, Entertainment Weekly, and numerous other magazines.

Proponents of the higher cigarette tax claim it will reduce smoking, especially among young people. Some economists call the tax regressive by falling more heavily on lower-income people, among whom smoking is more prevalent. The bill is passed by Congress but vetoed by President Bush. In 2009, Congress passes the bill, and President Obama signs it into law.[28-30]

In 2016, the company’s recruitment website, cantbeattheexperience.com, launched in 2002, features testimonials of employees and a video, “Work, Life and Culture at Altria.”[31]

Payments were expected to decline by 1.8% per year as smoking declined but instead have declined by 4.1%. One credit analyst predicts that full-blown defaults would begin in 2024, when Ohio would be $350 million short on $41.1 billion of tobacco bonds maturing that year.[34] Although the federal government ended tobacco subsidies in 2004 (a price support program for small farmers begun in 1938 during the Depression), with passage of the Equitable Tobacco Reform Act, which offered $10.1 billion in buyouts to tobacco farmers to switch crops, tobacco acreage in the US has grown by 20% by 2007. American tobacco is now a competitive export to China, Russia, and Mexico, where cigarette sales are increasing.

COPD is the fourth leading cause of death in the US, killing 120,000 Americans a year; it is expected to be the third leading cause of death by 2020. More women than men are now also diagnosed with lung cancer, which surpassed breast cancer in 1987 as the leading cause of cancer deaths in women. Heart disease, for which smoking is a major risk factor, remains the number one cause of death among women. In 2012, researchers from the American Cancer Society and the National Cancer Institute report in the Journal of Clinical Oncology that in spite of the declining rate of lung cancer in the US, the death rate from lung cancer among middle-aged women has remained steady or even risen in the South and Midwest. When asked in a 1986 radio interview how she could justify the acceptance of cigarette advertising in Ms. magazine, even in its annual health issue, publisher Gloria Steinem acknowledged that the magazine could not survive without it. In a 1999 report by the American Council on Science and Health, “You’ve Come a Long Way…or Have You?” (referring to the Philip Morris “You’ve come a long way” cigarette campaign which launched in 1968, targeting women.[35] ACSH president Dr. Elizabeth M. Whelan castigated 13 popular women’s magazines for continuing to accept cigarette advertising and downplaying the risks of smoking.[36] The ACSH publishes a similar opinion piece in 2012.[37] In 2016, magazines such as Glamour, Essence, Vanity Fair, and Cosmopolitan continue to accept cigarette advertising.

Supermarket chain Wegmans sets an example for food stores by ending tobacco product sales in its 70 supermarkets.

Only 30% of the $61.5 billion divided among the 46 states has been spent on health care, according to the federal General Accounting Office. Less than 4% has been directed to anti-smoking efforts. By 2015, less than 1.9% of the annual settlement payments to the states is directed toward programs to prevent or stop smoking.

Congress authorizes the largest federal tobacco excise tax in US history, from 39 cents per pack to $1.01 per pack, as a funding mechanism for the State Children’s Health Insurance Program (SCHIP).[40]

The scale of the benefit is substantially less than the 80% 10-year survival rate projected by radiation oncologist Dr. Claudia Henschke in 2006 based on her own multi-year study begun in 1991. Dr. Henschke, then a researcher at Weill Cornell Medical College, failed to disclose conflicts of interest, notably $3.6 million in funding from the cigarette manufacturer Liggett Group; and 90% of patient consent forms were missing. In 2013, the US Preventive Services Task Force recommends spiral CT screening for lung cancer along the lines of the NLST.[42] Lung cancer, which kills nearly 160,000 Americans each year, is the leading cause of cancer deaths in both men and women, accounting for 25% of cancer deaths.[43]

The FDA had sought a scientific argument that menthol cigarettes increase addiction or risk of disease compared with nonmenthol brands-but as the independent FDA Tobacco Products Scientific Advisory Shadow Panel argued in 2010, in calling for the elimination of menthol in cigarettes, the central issue is not a scientific question but a marketing concern.[46-48] In legislation granting the FDA regulatory authority over cigarettes in 2008, Congress banned the use and promotion of candy and fruit flavors in cigarettes because they were used to lure children to smoke. But yielding to threats by the largest cigarette company, Philip Morris, to withdraw support of the FDA tobacco legislation if menthol were banned, Congress specifically exempted the additive. As a result, the National African American Tobacco Prevention Network withdrew its support for the bill.

The FDA had attempted to introduce nine different images, including pictures of diseased lungs, brown teeth, and a woman wearing an oxygen mask, coupled with messages such as “Cigarettes cause fatal lung disease,” “Cigarettes cause strokes and heart disease,” and “Cigarettes are addictive.” The case is expected to be decided by the US Supreme Court.

Advertisements in the 12-week, $54 million campaign appear on TV, radio, social networking sites, billboards, and in newspapers and magazines. The tobacco industry spends $10 billion each year on cigarette marketing.[50]

Proponents of e-cigarettes in the public health community, notably Michael Siegel, MD, argue that they represent a safer alternative to cigarettes. Opponents of the use of e-cigarettes for harm reduction, such as Gregory Connolly, DMD, argue that they may become gateways to cigarette use by adolescents, and that the electronic cigarette liquid represents a poisoning risk for children.

Sales of e-cigarettes are banned to those under age 18, warning labels on packaging are required (such as the one included with this 2014 advertisement for MARKTEN, manufactured by Nu Mark, an Altria company), and manufacturers of all vaporizers and liquid nicotine products must apply for approval for each product. The FDA also imposes its first regulations on cigars, as well as on hookah and pipe tobacco.

Between 1988 and 1992, Williams was hired to assemble a database of internal documents to help defend Brown & Williamson against product liability suits. However, he became so disturbed by what he read in the tobacco company’s internal research reports and memoranda concerning the hazards of smoking that he began smuggling copies of industry documents-ultimately more than 4,000-out of Brown & Williamson’s offices, in his clothing. A former smoker whose favorite brand was Brown & Williamson’s “Kool” cigarettes, Williams gave up smoking after reading the company documents.

Donald R. Shopland, a staff member for the Advisory Committee to the Surgeon General that wrote the first Surgeon General’s Report in 1964, is listed as a contributor to the latest report. He is the only individual to contribute to each of the 34 reports of the Surgeon General on the health consequences of smoking, published since 1967. A commemorative exhibition about the Report debuts at the Gorgas Library of the University of Alabama and travels to other venues including the Lyndon Baines Johnson Presidential Library. On January 11, 1964, the Report was released by the Johnson administration, although President Johnson himself never endorsed it.

In 2012, two discount store chains serving predominantly low-income neighborhoods began selling cigarettes and other tobacco products. Family Dollar added cigarette displays to 6,000 stores and Dollar General added displays to 10,000 stores. Both chains credit cigarette sales as the main source of their rising profits.

Supporters of the regulations for e-cigarettes warn that they could become a gateway to traditional cigarettes, in spite of the fact that youth smoking rates have declined since e-cigarettes first appeared a decade ago. Opponents of FDA regulation of e-cigarettes point to studies in the United Kingdom that have found e-cigarettes helpful in smoking cessation.[62,63]

Cuban cigars are predicted to capture 30% of the US market. In 2014, a review of 22 studies found that primary cigar smoking (current, exclusive cigar smoking with no history of previous cigarette or pipe smoking) is associated with all cause-mortality, oral cancer, esophageal cancer, pancreatic cancer, laryngeal cancer, lung cancer, coronary heart disease, and aortic aneurysm; strong dose trends by cigars per day and inhalation level for primary cigar smoking were observed for oral, esophageal, laryngeal, and lung cancer. Cigar smoking thus carries many of the same health risks as cigarette smoking.[66,67]

These companies include SIEMENS, which makes cigarette-manufacturing machinery for Philip Morris and other tobacco companies; TIME, Inc. and Conde Nast, which publish cigarette advertisements in many of their magazines, such as Sports Illustrated and Vanity Fair, respectively; the Steve Tisch Foundation, which emanates from a family fortune made in large part from the sale of Lorillard cigarettes such as Newport; and the Safeway Foundation, the charitable arm of the nation’s second largest supermarket chain, which sells cigarettes in its 2,200 stores.