The United States Government's Racketeering Lawsuit against the Cigarette Industry (original) (raw)
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Regulatory Approaches to Ending Cigarette-Caused Death and Disease in the United States
Social Science Research Network, 2013
I. INTRODUCTION Cigarettes result in over 400,000 preventable American deaths each year. 1 In 2011, fewer than twenty percent of adults smoked. 2 Since the publication of the first U.S. Surgeon General's Report on Smoking and Health nearly fifty years ago, when smoking prevalence was around forty percent, 3 policies such as smoke-free laws, large tax increases, and litigation have collectively contributed to cut smoking prevalence in half. 4 Unfortunately, no one expects the mix of policies currently proposed, which includes further tax increases, spatial smoking restrictions, somewhat higher minimum age restrictions, adverse publicity, and quitting assistance, to reduce U.S. smoking prevalence below fifteen percent in the foreseeable future. The rule adopted by the U.S. Food and Drug Administration (FDA) to require hard-hitting graphic warnings on cigarette packages, 5 as is currently done in dozens of other countries, has thus far been rejected by federal judges who have found that warnings designed to arouse negative emotions violate cigarette manufacturers' First Amendment rights. 6 Even if these warnings are eventually implemented, although they may encourage smoking cessation and deter initiation, there is no evidence that they can produce a dramatic drop in smoking rates. Similarly, while the FDA is moving painfully slowly to address the Congressionally-mandated question 7 regarding whether menthol as a characterizing cigarette ingredient encourages
Tobacco Control and the Role of Litigation: A Survey of Issues in Law, Policy, and Economics
SSRN Electronic Journal, 2008
This article examines the course of tobacco litigation in the United States and its implications for law and policy in the future, both in the U.S. and internationally. In our view, the different legal traditions and attitudes of other countries when applied to the current balance achieved in the U.S. through a mix of litigation, settlement, and regulation will lead the majority of such states to opt for the direct and transparent regulation of tobacco activities through formal and perhaps consensual channels, thereby bypassing the long and costly stage of litigation that characterized the U.S. process. Therefore, despite some increased litigation in the product liability area as a whole, the approach to tobacco control on the international level is likely to be characterized by the continuing, and, indeed, increased reliance on direct regulation rather than on ad hoc litigation, the efficiencies of the former approach having now become evident. JEL codes: L59 (regulation-other) K33(international law) I18 (public health policy) Keywords: Tobacco litigation, tobacco regulation. * We benefited from the comments of Nuno Garoupa and acknowledge the excellent work of Guilherme Vilaça and Michael S. Navarro research assistants. Opinions expressed reflect solely our views.
The US Cigarette Industry: An Economic and Marketing Perspective
Tobacco regulatory science, 2019
Objectives:Tobacco company conduct has been a central concern in tobacco control. Nevertheless, the public health community has not taken full advantage of the large economics and marketing literature on market competition in the cigarette industry.Methods:We conducted an unstructured narrative review of the economics and marketing literature using an antitrust framework that considers: 1) market; definition, 2) market concentration; 3) entry barriers; and 4) firm conduct.Results:Since the 1960s, U.S. cigarette market concentration has increased primarily due to mergers and growth in the Marlboro brand. Entry barriers have included brand proliferation, slotting allowance contracts with retailers and government regulation. While cigarette sales have declined, established firms have used coordinated price increases, predatory pricing and price discrimination to sustain their market power and profits.Conclusions:Although the major cigarette firms have exercised market power to increase prices and profits, the market could be radically changing, with consumers more likely to use several different types of tobacco products rather than just smoking a single cigarette brand. Better understanding of the interaction between market structure and government regulation can help develop effective policies in this changing tobacco product market.
Smokers\u27 Compensation: Toward a Blueprint for Federal Regulation of Cigarette Manufacturers
1998
Although nothing is certain in Washington, sweeping federal legislation in the cigarette area is more likely now than has ever been the case. Congress is currently considering several proposals for comprehensive federal regulation of the cigarette market, a market that has until now gone largely untouched by government intervention. Among those proposals, the one that has received the most attention, and the one that in fact motivated policy makers to look anew at the problems posed by cigarettes, is the proposed national tobacco resolution (the Proposed Resolution ). The Proposed Resolution, which has been advanced by a coalition of state attorneys general and tobacco companies, would grant cigarette manufacturers immunity from all class action and attorney general lawsuits and punitive damages for past harms in exchange for changes in FDA regulatory authority, limitations on advertising by tobacco companies, and $368.5 billion in payouts over 25 years
Constructive Cigarette Regulation
Duke Law Journal, 1998
Professor W. Kip Viscusi argues for a move away from the adversarial approach to tobacco regulation, an approach that is currently embodied in class action lawsuits and the proposed broadening of FDA regulatory power over cigarettes. In this Article, he suggests that the FDA should take a constructive role in fostering technological innovations to promote cigarette safety, in much the same way that the government currently fosters safety improvements in motor vehicles and jobs. Professor Viscusi claims that the objective of government policy should be to promote informed consumer risk taking-an approach which recognizes that adult consumers have a right to smoke and to incur the associated risks. He provides survey data demonstrating that although consumers know that smoking is a risky decision, they have little exposure to information regarding the comparative riskiness of various cigarette brands. According to Professor Viscusi, the government should assist in compiling and disseminating information regarding the comparative risks of different smoking options and the effects of certain innovative safety features for cigarettes. Making this information available would enable consumers to make more informed smoking decisions and potentially minimize the health hazards that smoking poses. 10/29/98 4:28 PM 1998] CONSTRUCTIVE CIGARETTE REGULATION 1097 panded role for the FDA. Since this expanded role would be enacted through new legislation rather than through interpretation of existing legislation, Professor Merrill and Sunstein's debate about the statutory basis for an expanded FDA role would no longer be pertinent if such sweeping legislation is passed. 11 Included among the many FDA provisions in the Resolution are the following: • The FDA's authority to regulate tobacco products under the Food, Drug and Cosmetic Act would be confirmed. 12 • The FDA would be given the authority to regulate the levels of nicotine in tobacco products.
Smokers' Compensation: Toward a Blueprint for Federal Regulation of Cigarette Manufacturers
1998
defining and comparing these various forms of regulation and summarizing the literature regarding the scholarly consensus in favor of incentive-based regulation). 19. There are many examples of command-and-control regulation in the Proposed Resolution. For example, the warning requirements and the advertising restrictions that the Proposed Resolution. would impose on manufacturers are best characterized as command-and-control regulations. Similarly, if the FDA exercised its limited authority under the Proposed Resolution to mandate particular "technologically feasible, " "less hazardous tobacco products," it would do so in the form of command-and-control regulations. Proposed Resolution, supra note 4, at 14.
2004
3 There is some empirical evidence that state cigarette excise taxes are set at the level on average which accounts for the externalities that cigarette consumption causes (see Willard G. Manning et al., The Taxes of Sin. Do Smokers and Drinkers Pay Their Way? 261 JAMA 1604 (1989) and Willard G. Manning, Emmett B. Keeler, & Joseph P. Newhouse, The Cost of Poor Health Habits (1991)). But these results depend on treatment of secondary smoke within households (see Frank A. Sloan, Jan Osterman, & Gabriel Picone, The Private and Social Cost of Smoking (Manuscript, Duke Univ., 2003)) and not making assumptions that people smoke because they lack self-control. Assuming that smokers lack self-control,