Tobacco Buster

An interview with Michael Pertschuk

MICHAEL PERTSCHUK has played a leadership role in the development of tobacco-control policies for almost 30 years. In 1965 and 1969, as chief counsel to the Senate Commerce Committee, he developed the legislation requiring warnings on cigarette labels and banning broadcast advertising of cigarettes. In 1977, he was appointed chair of the Federal Trade Commission by President Carter. Currently, Pertschuk serves as co-director of the Advocacy Institute. He helped establish Globalink, a network linking tobacco-control activists worldwide. He is the author of three manuals on tobacco control, and three books: Revolt Against Regulation, Giantkillers and The People Rising.

Multinational Monitor: Why is the U.S. tobacco industry so weakly regulated?

 Michael Pertschuk: There is a series of answers, ranging from the corrupt to the banal. Cigarettes have been very much a part of our culture. And there are 50 million addicts. So even if the companies lacked the kind of political and economic power they have, it's not likely that we would do what we should do, or what a civilized society would do, if cigarettes were a proposed new product, which is put anybody in jail who sold it.

 Beyond that, you've got an industry with a concentrated agricultural, geographic base, a very powerful one in the South. And it is not just the simple farmers who constitute that base, but also, because of the elaborate market structure, allotment holders of tobacco farmland, who are usually doctors and lawyers and people who have never dirtied their fingers in farming.

There is, in the House of Representatives, a collection of tobacco district congressmen known as the "Tobacco Boys." There are about 50 of them, and they are senior and powerful. For them, tobacco is the single most important issue. So they are prepared to trade with congressmen from other parts of the country for tobacco votes. So you have got a very powerful phalanx.

 Beyond that, the cigarette is an incredible cash cow. It is the most profitable product ever conceived of, and the reason lies in the very truthful words of the former R.J. Reynolds board member, Warren Buffet, who owns ABC television, among other things. Buffet, said, and this is in the book Barbarians at the Gate, the story of the takeover of R.J. Reynolds: "Tell you what I like about the cigarette business. Costs a penny to make, sell it for a dollar. It's addictive."

So the cigarette companies make enormous amounts of money, and that is the major reason they are buying up the rest of the consumer goods businesses in the United States. Philip Morris has enough money that with its spare change it picks up General Foods and Kraft, and that creates and extends its network of influence, power and money. They can buy up every lobbyist in Washington. We estimated, and it was a conservative and reasonable estimate, based upon some inside information, that the industry spends about $600 million a year on lawyers. Some of that money is spent to buy up trial lawyers around the country on retainer just to make sure that they don't ever get involved in a tobacco industry liability lawsuit. So there is tremendous depth in political representation, in paid-for political representation and in infiltrating the business community.

 Another very important part of the power, and it is in some ways the most insidious part of its current focus, is that the cigarette companies have set about systematically to buy up the leadership of the very communities - the women's community, the African-American community and the Hispanic community - that might rise up to protest cigarette advertising and promotion and exploitation. Philip Morris, which is easily the most skillful and strategic company has also set about to buy up the Left, just in case the Left would get restive about the kind of mayhem that cigarettes spread.

MM: How is Philip Morris buying up the Left?

 Pertschuk: There are several examples. The Tobacco Institute is a key funder for the Coalition on Human Needs. The Food Research and Action Center, which is the most serious lobbyist for hunger programs, for school lunch programs, is underwritten by Philip Morris. Philip Morris underwrites homeless groups. It struck a bargain with ACT-UP [the AIDS Coalition to Unleash Power] and contributes substantial amounts to ACT-UP's funding and the causes that ACT-UP supports. So it has supported AIDS research. It has supported pro-choice groups on reproductive rights, it has supported the Women's Political Caucus and the Black Political Caucus. It supports the Eagleton Center for Women and Politics at Rutgers.

There is no other obvious explanation [for these funding choices] but that, with so much money around, the tobacco companies just thought it was probably safe to buy up political progressives.

The industry also has entered into an alliance of convenience with the American Civil Liberties Union, which fronts for it on issues of advertising and promotion and perhaps even on some issues of regulation of indoor air. Although there is some evidence that the ACLU has been supported by tobacco companies, I think that the alliance is more likely due to a moral myopia on the part of the ACLU and a lot of interrelationships among First Amendment lawyers that represent the tobacco and alcohol companies.

MM: If you were again in a regulatory position, how would you confront the tobacco companies? Do you believe they are violating existing laws?

 Pertschuk: I think there is a very good argument to be made that all cigarette advertising today is both "deceptive" and "unfair," under the Federal Trade Commission's interpretation of those legal terms. I would begin by taking up [New York City Consumer Affairs Commissioner] Mark Green's petition to the Federal Trade Commission, which charged in effect that the Joe Camel advertising campaign is deliberately targeted at children, and that, under the Federal Trade Commission's power to regulate unfair advertising and promotion, is inherently unlawful. I would build on that by an action against R.J. Reynolds and the other companies which would argue broadly that any imagery which graphically conveys the sense of cigarette smoking as a passage to social success, to health, to vigor, to acceptability was preying on the vulnerabilities of young people and was inherently unfair, and therefore also unlawful under the Federal Trade Commission Act. So I think there is much that could be done both under deception and unfairness authority.

MM: What prospects do you see for industry reform as a result of liability suits?

 Pertschuk: Well this is not my area of expertise. It is clear that the Supreme Court, as we speak, is serious about - and split - on the question of whether Congress, in passing the legislation putting warnings on the labels and in advertising, intended to preempt any state action.

I was there. That is to say, I worked for Congress, for the Senate Commerce Committee in both 1965 and 1969, when the relevant laws were passed. I can tell you that the Court would be picking up fuzz from the universe if it found an intention in Congress to preempt the states from enforcing product liability common law. There was no intention expressed in any of the debates or by Congress at that time. The preemption - there is preemption language - was designed very simply to prevent every state from requiring a different warning than the Congress required, in the interest of uniformity.

MM: Do you support a ban on all tobacco advertisements?

 Pertschuk: I do. I think that a more likely Congressional action would be a ban on advertising containing graphic imagery, limiting advertising to the so-called "tombstone advertising," just print. To the extent that there is any First Amendment argument that cigarette advertising is or ought to be protected - and that is weak - it would go to some very narrow areas of information, such as price information, information on low tar and nicotine, which can certainly be portrayed adequately in print. But anyone who thinks cigarette advertising is about information still believes in the tooth fairy. Cigarette advertising is about imagery, seductive imagery. The elimination of the imagery in advertising would result, first of all, in the elimination of most cigarette advertising, because the companies aren't going to spend $2 billion a year on print. So tombstone advertising is desirable and, I think, achievable within the next few years.

Part of the problem is that the companies themselves are abandoning advertising to some extent, shifting their investments into promotions of various kinds. Promotions range from sponsorship of community events, such as the jazz festivals and various kinds of community celebrations, to the support of stockcar races and other kinds of events which attract the only part of the population which is holding steady or growing as smokers, which is lower-income, less-educated, younger people. So you would have to have comprehensive legislation [banning both cigarette advertising and promotion] such as is now occurring in Canada.

MM: Do you support increased tobacco excise taxes?

 Pertschuk: I do. The tobacco companies have found some responsiveness among civil rights groups and minority groups through the argument that excise tax increases are regressive. There are some good arguments that in their net impact they are not regressive. Specifically, when you raise taxes, the young people who don't take up smoking are primarily those for whom the costs become a real barrier, and those are poorer, younger people. So that the net impact on poorer communities is that less people smoke, and therefore, excise taxes do not, on the whole, take more money proportionately from poorer communities than from rich communities.

That is tough, however, for the person who is a smoker in a low-income community, and it is an issue that many people have wrestled with. Marian Wright Edelman of the Children's Defense Fund broke with most of the poverty groups [on this question], arguing that she supported higher alcohol and tobacco taxes so long as the tax code was also changed to provide some compensatory, progressive return of tax revenues to low-income people. That would be the way to deal with it ideally, through some kind of tax credit or other tax relief for poorer families. But raise the excise taxes, because they are the single most effective means we know of discouraging young people from taking up smoking.

MM: What can people in the United States do to control the overseas activities of U.S.-based tobacco multinationals?

 Pertschuk: The current outrage that is being perpetrated by the Office of the U.S. Trade Representative is with respect to Taiwan, which has already been the victim of U.S. marketing aggression. The Taiwanese have developed a comprehensive tobacco control law. Unlike some other restrictions on the marketing and import of U.S. cigarettes in some Asian countries, there isn't even an argument that this law was designed as a trade barrier. This is health legislation that applies to all marketing of cigarettes in Taiwan and would be comprehensive. Indeed many provisions are based upon models supported by the Health and Human Services Department of the United States. It proposes public education, disclosure of activities, a ban on advertising and promotion and restrictions on such things as vending machines and smokeless tobacco.

 The Office of the Trade Representative is arguing in closed sessions with the Taiwanese government that this violates an agreement which the United States forced down Taiwan's throat in 1986 under threat of trade retaliation. At that time, Taiwan agreed, at least temporarily, to allow U.S. cigarettes to be advertised in order to permit U.S. companies to make up for the lost time in which they were excluded from the Taiwanese market.

In effect, the U.S. government is now threatening not only trade retaliation, but also to block Taiwan's membership in GATT on the basis of an agreement that is already a piece of international blackmail.

 I think that is so outrageous that publicity about it and protests about it to members of Congress, the Office of the U.S. Trade Representative and to [Secretary of Health and Human Services Louis] Sullivan might have a real impact.

MM: Are there other steps the U.S. government or citizens could take to restrict the tobacco companies' abuses abroad?

 Pertschuk: There has been an effort to require that cigarettes exported from the United States at least bear the warnings that are required for their consumption in the United States, unless the country that is importing them has imposed warnings of its own. Congressman Chet Atkins, [D-Massachusetts], has legislation pending to do that.

Probably the most useful thing the United States could do is help transfer the technology of tobacco control to Third World countries. By that I mean the tobacco control movement in this country, especially the grassroots organizations like Americans for Nonsmokers Rights, some of the GASP groups, DOC and others, have developed some pretty effective strategies for taking on the tobacco companies. There are organizations such as the American Cancer Society and the International Union Against Cancer and individuals like Greg Connolly [director of the Massachusetts Office on Nonsmoking and Health] who have been very effective in counseling Third World countries on how to resist the transnational companies.

The U.S. government, though the Institutes of Health, the Department of Health and Human Services and the Agency for International Development, and through its support of the World Health Organization (WHO), could do a lot. We are not talking about substantial amounts of money here. Up until the last couple of years, WHO had something like a $40,000 or $50,000 budget beyond a small staff to do tobacco control, whereas it had $8 million for other drug programs. So we could support the growth of the network of resources to help countries resist the tobacco companies.

MM: What should be the key elements of tobacco control programs for countries which are opening up their tobacco markets?

 Pertschuk: Well, first of all, most of them - especially in Eastern Europe - have had in place some restrictions on advertising and promotion. The most important thing for them is to hang on to them, and strengthen them and enforce them.

There is an incredible struggle for the soul of Eastern Europe going on right now, and there are some forces working for [maintaining and imposing strict tobacco control regulations]. Lech Walesa and Cardinal Glemp in Poland both co-sponsored the first workshop on tobacco control in Eastern Europe and have supported legislation reaffirming the restrictions on advertising and promotion. But the tobacco companies keep sneaking in.

So what is really needed is vigilance to see that, under the guise of opening up free markets and amidst the shift to a grand and glorious market economy, advertising and promotion for tobacco doesn't slip in in the dead of night. And that requires a network of people being alert. The Eastern European governments are open to hearing from health authorities in the United States and others to counteract the lobbying efforts and the corrupt efforts of the companies over there.

MM: What other steps would you suggest?

 Pertschuk: When you talk about basic tobacco control, there are really four primary areas of focus. There is the elimination of advertising and promotion. There is the restriction of indoor smoking in public places, which in most European countries is still pretty primitive. The third element is restricting minors' access to cigarettes, which requires not only laws but a commitment to policing, something we haven't had very much of in this country. And then there is taxation.

For the Eastern European countries which are starved for revenues, taxation would seem to be a very good place to turn, and especially taxation based upon price, because imported cigarettes are always going to be higher priced. It is one way of preventing the companies from developing the kind of market penetration which would encourage them to try and advertise and promote and buy off officialdom in the country. Greg Connolly has done a lot of work in this area and has been very helpful to a lot of the countries.

One of the things that would be useful would be to have a traveling SWAT team of experts, not just U.S. experts, but others, available to help advise the health authorities in these countries who just haven't had the experience of dealing with the cigarette companies.

MM: What is Globalink, and why was it developed?

 Pertschuk: Historically, one of the great failures of the relatively few people working in tobacco control, both in this country and abroad, has been the failure to connect, to share strategies, to share intelligence about where the tobacco industry is going and to amass whatever forces there are in the world that are concerned about tobacco control and focus them on the most important areas of conflict.

 Globalink is an international computer network developed and supported by the American Cancer Society, and its goal is to link the key resources and organizations internationally and domestically. It is really a tool of all those working, both in the United States and around the world, for tobacco control, because it is a means of not only exchanging information in a timely way but also of mobilizing people to focus on key issues and places.