Ashes to Ashes (107 page)

In Waxman, the tobacco forces faced a more resourceful and committed adversary than any of his predecessors in Congress, and the presence of the health voluntaries’ Coalition on Smoking or Health notably strengthened his hand. “It was clear,” recounted the Coalition’s Matt Myers, “that our people were not just going to go away.” Timing, too, was assisting Waxman, as the once monolithic battlement the industry had built began showing fissures. Profit-minded cigarette makers were using less and less domestic leaf as consumption ebbed a percentage point or two each year, technology like freon-puffed tobacco allowed ever smaller quantities of leaf per cigarette, and more cheap foreign leaf was being imported. As a result, an increasing portion of the U.S. farmers’ crop had to go under loan through the federal support program, and its growing burden on taxpayers at a time when other marginal government outlays were being cut was adding pressure in Congress to halt the absurd practice of subsidizing a lethal harvest. To survive at all, the tobacco support program needed fixing, but the matter was of far more concern to growers than cigarette makers, and Myers played skillfully on the divergent interests of the two as the legislative mills ground away during the first half of the ’Eighties.

The tobacco control bill emerging from Waxman’s subcommittee toward the end of 1983 was tougher than the industry had anticipated. It provided that cigarette ads and packages carry, besides rotating warning labels, disclosure of the quantity of carbon monoxide as well as of tar and nicotine yielded by each brand. And a list of all ingredients added during the manufacturing process was to be provided to HHS officials for whatever investigatory steps they wished to take. This last provision had taken on more importance to public-health advocates who pointed out that 8 percent of every cigarette’s ingredients consisted of non-tobacco additives—chemicals and plant extracts that affected moisture level, burn rate, and the taste and odor of the tobacco. As the tar and nicotine yields had edged downward, these additives, particularly the flavorants, played a greater role in the appeal of the product. Yet as the 1982 Surgeon General’s report had underscored, there was no way to be certain that the newer additives did not promote cancer and thereby defeat the whole purposed lowering yields. The industry, however, had steadfastly resisted full public disclosure of cigarette ingredients, claiming that they were trade secrets and of no interest to anyone but the competing companies. This was tantamount to a declaration that the cigarette business was privileged, since makers of crackers, salad dressings, cough syrups, and practically every other product in common use had to disclose their ingredients on the package under federal
regulations. The tobacco industry had been exempted simply because it had political muscle. Waxman’s bill was aimed at chopping the cigarette companies at least partway down to size in this regard. It also stated that while no other health warnings than those spelled out in the bill could be required by federal regulators or under any state law, the labels in and of themselves did not curtail the right of smokers to sue the manufacturers in common-law tort actions claiming damages because their cigarettes were unreasonably dangerous; local juries remained free to decide the merits, if any, of the claims.

The cigarette companies, for so long politically bunkered, saw Waxman’s bill more as the wish list of a hyperliberal public-health advocate than an imminent threat to their privileged status. The Tobacco Institute’s Horace Kornegay went to work on his former House colleague, John Dingell, whose Commerce Committee had to pass on the smoking bill after the health subcommittee approved it. Dingell, in no hurry to handle the barbed measure, doubted that warning labels had any impact on the public’s buying behavior, and as a staunch defender of the automotive industry, beset like the tobacco companies by health and safety advocates, had a certain sympathy for the cigarette makers. It was an affinity skillfully massaged by the tobacco bloc’s best operative, North Carolina’s Representative Charlie Rose, whose deep drawl and somewhat unkempt appearance belied his aptitude as a gifted power broker. Rose had held his state’s moderate congressional delegation as a bloc largely loyal to the House Democratic leadership’s agenda, in marked contrast to many “boll-weevil” conservative Southern Democrats who voted with the Reagan administration. “We cooperate with the leadership,” Rose wryly remarked, “and remind them from time to time of our needs.”

He reminded Dingell now, not because he doubted that smoking was hazardous to health but out of concern for the financial survival of the many tobacco farmers among his constituents. Dingell, who had no love for Waxman, agreed to keep the smoking bill bottled up and give the industry time to cut the best deal it could for itself, provided that the tobacco lobby did not try to gut the bill when it reached the Senate.

Comforted by Dingell’s strength in the House, the tobacco camp calculated that it was in a still stronger position in the Senate. But Orrin Hatch, ever sensitive to his antismoking Mormon constituency and eager to have his name as leading sponsor on a moderate tobacco control bill, had surprised the industry by staging hearings on the issue and then urging the administration to negotiate a series of warning labels acceptable to the cigarette companies. In the crunch, though, HHS officials backed away from a toughened warning and, instead of a series of rotating and more informative labels, signed on to a single, slightly more explicit message: “Cigarette smoking increases your risk of cancer and heart, lung and other serious diseases.” Hatch, at heart a doctrinaire pro-business conservative, went along, much to the despair of the health lobbyists.
“Had the industry played its cards right,” Matt Myers recalled, “that would have doomed us in the Senate.”

But the tobacco forces now made the first of a series of miscalculations, believing that they would not need to compromise at all. As the bill was being marked up for a vote by Hatch’s committee, the chairman asked Horace Kornegay if the final wording was agreeable to the tobacco people, and while health advocates held their breath, the Tobacco Institute’s chieftain said that, alas, it was not. Hatch, who had nursed the deal through and staked his name on it, was humiliated. In short order, the committee passed a far more alarming label: “Cigarette smoking causes cancer, emphysema, and heart disease, may complicate pregnancy, and is addictive.” It also required the industry to provide the government with a full list of additives to cigarette tobacco.

Jesse Helms, chairman of the Senate Agriculture Committee, ordered the toughened warning bill to be put on hold, and Dingell was keeping the lid on in the House as 1983 ended. At the Tobacco Institute, Kornegay confessed his puzzlement over where the industry’s steadfast congressional support had gone after all the years and gifts and favors and horse-trading. “He didn’t understand the changing times,” remembered one TI operative. “He was a true believer who could look you in the eye and swear that cigarettes were a health additive.” However well-intentioned and devoted, Kornegay had become a polarizing force and thus useless as a negotiator. But any successor still had to take orders from the industry’s executive committee, hardly a resilient bunch. “Horace was not the only one who had lost touch,” remarked the new choice to wheel and deal in Congress—Howard Liebengood, former chief aide to Senate Republican leader Howard Baker and the Senate’s sergeant-at-arms for three years before coming to the Tobacco Institute.

Liebengood’s charge was to get as many of the objectionable features as possible cleansed from the two versions that awaited release from committee for consideration by each chamber. Reconnoitering, he approached Dingell, whom he recalled saying to him, “I’m not going to skewer you guys,” but held out in return for a pledge, which Liebengood delivered, for the industry to go along with the House version when whatever smoking bill might emerge reached the conference stage. The health forces’ chief negotiator, Matt Myers, meanwhile set about trying to soften up opposition to a new labeling bill by the other key obstacle to such a measure in the House—Charlie Rose. Since Rose’s priority was to keep alive the increasingly unpopular tobacco support program, which Myers’s Coalition flatly opposed, common ground was elusive at first. But a narrow margin of it was found through Coalition support, in the name of public health, for a congressional measure banning the import of tobacco from nations that permitted it to be sprayed with carcinogenic pesticides. Rose appreciated the spirit of the gesture, which had the effect of supporting his tobacco farmers, but he and Myers played a cat-and-mouse game as
long as the Coalition was on record in opposing continued federal crop supports for tobacco. Rose urged Dingell to keep the labeling bill under wraps, but meanwhile its provisions were being intensively negotiated.

Hatch, still peeved at the industry, had indicated he would go along with almost any antismoking bill that passed the lower chamber. But someone was needed to break the House logjam, and the brokering job fell to the earnest young Tennessee Congressman Albert Gore, Jr., whose constituency included a goodly number of tobacco farmers and whose family held a small, hereditary tobacco acreage allotment under the federal support program. Gore, running for the Senate that year, recognized the merits of the health issue and moved discreetly to bring the parties to an understanding. Impressed with Myers’s square-shooting, Gore turned to Liebengood and asked him what the industry could not live with, not merely what it did not like. The tobacco lobbyist all but admitted that he could not negotiate with a free hand, because any concession that he might make had to be ratified by his employers, who were a very reluctant bunch.

Most attention was devoted to adjusting the warning labels—how many, how large, what shape, and how they would be worded. No matter what else, Liebengood made it plain, the industry would not sit still for language that included the words “death” or “addiction”. And, as forecast, any ground Liebengood yielded was taken back after he consulted with his executive committee. Myers stayed in the game, winning points with Gore, who kept gently pressing the industry to compromise. Finally Gore advised Myers a deal could be struck if the health advocates would agree to language that explicitly barred liability suits against cigarette makers who met the new warning requirements—in short, federal preemption would not only block stronger warnings by any state or local jurisdiction but would also deny smokers the right to sue for damage to their health since they would have been alerted to the possibility by the labels. This was the opposite of the provision in the bill passed by Waxman’s subcommittee.

Waxman’s astute aide Ripley Forbes found that there was no great anti-preemption sentiment within the Coalition’s ranks, in all likelihood because its constituent organizations included a great many doctors who bore a professional antipathy to lawyers and lawsuits, in particular those claiming medical malpractice, and were not eager to bolster the rights of litigants in general. Myers told Gore that if dropping the preemption exclusion was what it would take to seal the deal, he would accept it—only to be told soon thereafter that the industry still had another dozen or so “problems”. By this point, Myers was ready to pull out of the negotiations and take his chances on a floor vote—assuming that Dingell ever freed the measure.

Exhibiting heroic patience, Gore managed to bring the parties to a settlement, which included more bitter medicine for Myers to swallow. The health
community’s much-sought warning that smoking was addictive would be stripped from the rotating messages; in its place the industry agreed to one stating merely that cigarette smoke contained carbon monoxide—without adding that it was a toxic gas. Three other warnings were agreed to: “Smoking Causes Lung Cancer, Heart Disease, Emphysema, and May Complicate Pregnancy;” “Smoking by Pregnant Women May Result in Fetal Injury, Premature Birth and Low Birth Weight;” and “Quitting Smoking Now Greatly Reduces Serious Risks to Your Health.” The warnings were to appear in type half again as large as previously. The preemption issue would not be elaborated upon in the new bill, leaving the scope and the interpretation of the language in the earlier warning laws up to the courts. And the industry would have to turn over each year to OSH a complete list of the additives it used in manufacturing cigarettes, but it did not have to state which ingredients were used in what quantity in any particular brand—and the list had to be kept under lock and key, to be scrutinized only by authorized government researchers who could report their findings to HHS officials, who in turn might make regulatory proposals to Congress if the additives were found dangerous.

After the health camp accepted the package, Liebengood, pleased with the bargain he had struck, took it to his masters, only to find them wringing their hands. “They weren’t used to getting pushed around,” Liebengood recounted; “they were used to sweetheart bills—and this wasn’t one.” He argued that this was the best bill the industry could hope for, that nothing better would emerge from the Senate, and that the company chiefs would gain favor in Congress by appearing responsive to the health community’s concerns. The companies’ answer: No deal.

Gore, snookered as Hatch had been by the industry’s treachery, went to Charlie Rose with his tale of double-dealing, and the shrewd North Carolinian, fearful that the manufacturers’ conduct would fire up Congress to the point where it would not only pass a tougher antismoking law but also wipe away the tobacco crop support program, went to Dingell. The redoubtable House Commerce Committee head, overseer of 40 percent of the bills enacted by the lower chamber, resented the way the tobacco people were toying with the legislative process and ordered the Waxman bill freed. Gore’s version was quickly substituted for it, and the measure was passed by acclamation. Even then, the industry executives tried, despite repeated pledges by its operatives to accept the House version, to get the bill shot down in the Senate. They failed.

Although the 1984 law did nothing to restrict the manufacture or marketing of cigarettes, it represented a turning point in the industry’s hold on the federal legislative machinery. Its lobbyists were perceived by a growing number of lawmakers as duplicitous agents of to-the-bitter-end moguls, and smoking was no longer an issue that could only embarrass everyone in Congress. The 1984 act, moreover, marked the emergence of Henry Waxman as what one Philip
Morris attorney called “a very dangerous adversary.” His persistence matched his patience, and he would keep after the tobacco industry over the following decade, repeatedly holding hearings on antismoking measures for which he could never muster a majority of his subcommittee membership, yet each time he advanced the antismoking cause by ventilating it for an ever-widening segment of the public. And he did not grow jaded as the fight lengthened—a prime virtue in the eyes of battle-scarred consumer advocate Ralph Nader, who termed Waxman “something special” and a notable exception to “the high attrition rate among progressives in Congress.”