PRACTICALLY FROM THE MOMENT I ARRIVED IN CONGRESS, the fight against tobacco has defined my career. For thirty-five years, I’ve used every lever of government at my disposal to wage this battle, and I’ve done so for one simple and compelling reason: Tobacco kills 440,000 people every year, which makes it the single greatest public health threat America has encountered over the last sixty years. And the fact that this deadly product is legal makes it harder to regulate, and all the more dangerous.
For decades, the tobacco industry managed to hide or downplay the devastating societal consequences wrought by the millions of people who smoke. Every day, tobacco kills as many people as would perish if two jumbo jets crashed—and it continues killing at this rate, day after day after day. By any rational standard the cost in lives, dollars, and lost productivity constitutes a national emergency. Yet when I came to Congress, the issue barely registered. I soon discovered why: The tobacco companies’ amazing grip on Washington let them evade the scrutiny that every other industry had to endure. In 1979, as a reform-minded young chairman of the Health and Environment Subcommittee, I set out to stop this from being so. Some epidemics are beyond our control. But this one was entirely avoidable. The single most important step anyone could take to improve the nation’s health would be to cut back tobacco use. But doing so entailed taking on the most powerful interest group in town.
The story of our decades-long effort to curb tobacco’s deadly prevalence and its malign influence over Washington is a saga of struggle between public need and private interest. The particulars of this struggle illuminate the process whereby powerful private interests burrow deep into the heart of our system of government, not just entrenching themselves but acquiring the ability to manipulate that system from within. For years, the tobacco industry’s adroit use of Washington power enabled it to flourish, all but impervious to regulation or oversight. Only the committed efforts of a handful of legislators, who pushed year after year, often grinding out only incremental gains, managed to change this. But the fact that we did so demonstrates that concerned politicians can, and often do, prevail against even the most daunting opposition. Above all, the tobacco fight shows how the government can better our national culture, in this case saving tens of thousands of lives and improving the lives of millions of others.
VIEWED FROM TODAY, TOBACCO’S STATUS IN THE 1970S SEEMS all but unimaginable. People smoked everywhere, and they smoked a lot—in meeting rooms, elevators, restaurants, theaters, and on trains, buses, and airplanes. Few protested this state of affairs, because we were all conditioned to think of smoking as utterly ordinary and acceptable behavior. Those who did protest quickly encountered the industry’s might. No interest group in Washington loomed larger than Big Tobacco, which possessed a sophisticated understanding of the congressional process, as well as the means and ability to influence it.
The tobacco industry has historically been powerful in Congress because its regional representatives zealously protect its interests, and do so with great skill. This is no accident. Since the Energy and Commerce Committee has jurisdiction over tobacco, the industry has long encouraged newly elected members from tobacco-producing states (most of whom it helped to win office) to seek membership. Steering committees for both parties determine where members are assigned, so, mindful of the importance of seniority in Congress, the industry goes to work there, too, carefully tracking the steering committee’s roster in order to pressure and influence those who actually place the new members. This strategy ensures that a steady stream of allies is always moving up the ladder of the most important committees and subcommittees. For many years, when sympathetic chairmen retired, they were often succeeded by people with identical views on tobacco. It was a measure of the industry’s success on this front that the man I defeated in 1979 to become chairman of the Health and Environment Subcommittee—Richardson Preyer, a North Carolina Democrat—did not believe that tobacco was harmful.
When I got to Congress, the industry made little distinction between the parties. Most of the powerful chairmen in those days were Southern Democrats. But the industry spread money around to both leaderships, and curried additional favor—and gained unparalleled access—by shrewdly alleviating one of the most tedious aspects of a congressman’s life: the constant travel on commercial airliners. The tobacco companies routinely shuttled congressmen around the country in corporate jets. (When I later challenged this practice, my own party’s leadership was as cool to the idea as the Republicans’.) Tobacco companies always ranked among the largest contributors of “soft money” to the party committees, funded lavish inaugural balls, and happily underwrote the annual galas for more charity foundations than you could imagine—all of which bought them unexpected allies, and silenced some who might otherwise have spoken up.
The industry understood its vulnerabilities and carefully purchased protection. Smoking kills minorities at a disproportionate rate. So tobacco companies funneled disproportionately large sums to minority-heavy districts through grants to local schools, charities, arts foundations, and other community projects. These districts were often among the poorest in the country, and desperately needed the money. Consequently, their benefactors enjoyed outsized influence in the very communities that suffered the most harm from their products.
This is how tobacco came to wield such enormous clout, not just in Congress but throughout Washington. The industry effectively stood beyond the reach of the federal government. The Food and Drug Administration lacked the authority to regulate tobacco. The Consumer Product Safety Commission was explicitly forbidden to oversee tobacco and guns. And the Federal Trade Commission’s authority only extended as far as misleading advertising claims, which wasn’t far at all. Needless to say, neither party particularly wanted to change this sorry state of affairs. The tobacco industry was close to impregnable.
But even this protection and influence could not eliminate the mounting evidence of what tobacco was doing to millions of Americans. So the industry devised two very successful methods of staving off attempts at reform. The first was to encourage the idea that it was natural and acceptable to smoke. Cigarette companies hired the best minds on Madison Avenue to portray smokers as attractive, athletic, successful types engaged in a “lifestyle” that others would want to emulate, a notion that they reinforced by sponsoring athletic events (the Virginia Slims women’s tennis tour, the NASCAR Winston Cup) and creating iconic corporate mascots like Joe Camel and the Marlboro Man that were designed to be cultural signifiers of cool. The campaign to transform a destructive habit into seemingly wholesome behavior went beyond advertising. Underwriting philanthropic and charitable activities lent tobacco companies a sheen of civic-mindedness, allowing them to masquerade as stewards of the culture and pillars of the community, rather than merchants whose products caused death and disease. In Washington, their efforts to pass themselves off as a respected part of the establishment were pervasive—and even I was not immune.
Like many politicians, I have a dirty secret: I used to smoke. In high school, I would tool around West Los Angeles in my green-and-white Buick, dragging on a cigarette and imagining myself the epitome of cool. With considerable effort, I quit smoking after college, prompted by the emerging medical consensus that tar and nicotine were dangerous carcinogens. But early in my congressional tenure, I relapsed. It happened on a CODEL, the Washington acronym for “congressional delegation,” or one of the formal trips that congressmen take together on business. Everywhere I turned, cigarettes were being provided gratis to the members of our party—on the plane, in the hotel. It was all part of the industry effort to gull official Washington into feeling comfortable about smoking. To be sociable, I decided to light up, and because I hadn’t smoked in a long time, it packed a punch. Somehow, I convinced myself that I could smoke now and then without falling back into the habit. Before long, I was hooked again—and mortified to be so, since I was already becoming known as a crusader against tobacco.
Driven by a deep sense of embarrassment, I managed to quit for good. I rejoined the ranks of ex-smokers, chastened and with a profound appreciation for the tobacco industry’s wily influence.
The second way the industry staved off reform was by going to any length to create uncertainty about whether smoking was truly harmful. Though respectable doctors and scientists were nearly unanimous in agreeing that it was, the tobacco companies hired their own doctors and scientists to churn out study after study suggesting otherwise. The industry erected pseudoscientific front groups like the Council for Tobacco Research to cast doubts on any connection between smoking and disease, while its armies of lawyers labored to ensure that no court of law would find a tobacco company liable for dying smokers’ health claims. Flimsy though it was, this “scientific evidence” armed tobacco’s allies with sufficient deniability to maintain tobacco’s socially acceptable status. This helped discourage the idea that a culture of pervasive smoking was anything other than ordinary, which in turn made any efforts to curb smoking seem like a faddish cause for slightly nutty do-gooders.
All this elaborate effort was necessary for the companies to escape government oversight. Smoking was framed as a personal choice, a private matter in which the government had no place interfering. For years, the industry pushed the line that if people chose to smoke, well, that was their business. No one had the right to tell them otherwise. This argument long proved effective. But it rested on an assurance that tobacco did no harm to anyone who had not themselves chosen to smoke. The industry insistently raised doubts about every new scientific study linking tobacco to cancer, partly to keep its own customers from quitting, but also because its laissez-faire argument would break down overnight if the public came to realize the dangers of secondhand smoke.
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MAJOR ACHIEVEMENTS IN CONGRESS ARE RARELY REACHED OVER A single session. Tobacco’s clout and benign public image meant that significant reform would be especially difficult to bring about. Realistically, we had no hope of persuading Congress to regulate tobacco in the near term. So instead we turned to the oversight process as a way to begin pushing back against tobacco’s carefully constructed edifice and dramatize the alarming health effects that the industry worked so hard to obscure.
We certainly did not lack for evidence. Scientists had established as long ago as 1953 that tobacco caused cancer in rats. A year later, researchers linked smoking to lung cancer, heart disease, and a general increase in the death rate. In 1964, a landmark surgeon general’s report concluded that cigarette smoking caused cancer, and soon afterward Congress had required that cigarette packages carry warning labels. But little headway had been made against smoking since then, even as the staggering toll on public health continued to mount. In 1979, smoking was killing 400,000 people a year, and yet the industry could still deny that its product killed anyone.
Beginning in the early 1980s, I chaired a series of subcommittee hearings designed to bring these facts to light. Over several years, we brought in celebrities from Miss America to Captain Kangaroo to talk about the dangers of smoking, and to emphasize the rate of death and disease, the loss of productivity, and the family tragedies that invariably befall heavy smokers. While the celebrities did draw media attention, the coverage of the issues they testified about tended to dissipate quickly, making it difficult to sustain our campaign.
One area where we found some traction was in arguing for stronger cigarette warning labels. The label Congress had settled on in 1965 asserted vaguely that smoking was “harmful” to one’s health, which rather understated the case. Almost twenty years later, the message had become timeworn and long since lost whatever effectiveness it might have possessed. By hammering away at the dangers of tobacco in our hearings, we persuaded Congress to pass a law in 1984 that mandated new, more sharply worded, and much larger warning labels that rotated over time and linked cigarette smoking to specific ailments like lung cancer, heart disease, and emphysema. The law also extended the labeling requirement to billboards, newspapers, and other modes of advertising. Even so, the industry extracted a concession on what it considered a crucial issue of terminology: The link between smoking and disease could not be presented on the warning labels as an empirical fact, but instead was attributed to the surgeon general—thereby preserving the sliver of deniability the industry relied on.
Smokeless tobacco was another area that had escaped regulation, to tragic effect among the young men who were its core users. Snuff and chewing tobacco were exempt from labeling requirements, leading many kids to conclude erroneously that these products did not cause cancer. Sean Marsee, a high school track and field star from Oklahoma, was one such user who became the focus of a hearing on smokeless tobacco’s deadly effects. Marsee had started dipping Copenhagen snuff as a twelve-year-old. One day he discovered what turned out to be a cancerous red sore on his tongue, the size of a half dollar. His tongue was cut out, but the cancer still spread to his lymph nodes, necessitating several more disfiguring surgeries that could not, in the end, save his life. Soon after he died in 1984, at the age of nineteen, we introduced legislation extending the warning label requirement to smokeless tobacco. Surgeon General C. Everett Koop became an important ally, testifying that tobacco use among children was increasing, evidently in response to the industry’s multimillion-dollar advertising blitz featuring popular athletes and entertainers. In 1986, we succeeded in getting warning labels on smokeless tobacco products and prohibiting broadcast advertising for them.
Progress came slowly. But as scientific studies kept widening the range of health problems caused by tobacco, we continued to highlight the findings in oversight hearings. The purpose, as always, was to raise awareness that might lead to better laws and stronger regulation. One particular focus was the effect of secondhand smoke. During the 1980s, a number of studies began to amplify its dangers—demonstrating, for instance, that nonsmoking spouses of heavy smokers develop lung cancer at far higher rates that other nonsmokers, and that babies whose mothers smoke developed infections and diseases far more readily than those whose mothers didn’t. In 1986, Koop authored the first surgeon general’s report devoted to examining the effects of secondhand smoke. He concluded that “it is now clear that disease risk due to inhalation of tobacco smoke is not solely limited to the individual who is smoking, but can also extend to those individuals who inhale tobacco smoke in room air.” This was the news the tobacco industry feared. But while our hearings called attention to these findings, the initial results did not materialize in Washington, where the industry maintained a hammerlock, but at the state and local levels, prompting hundreds of anti-smoking ordinances in municipalities across the country.
In 1987, Representative Richard Durbin, an Illinois Democrat, finally forced the issue in Congress by introducing an amendment to the Federal Aviation Act banning smoking on airplane flights shorter than two hours. Durbin, the son of a two-pack-a-day smoker who died of lung cancer when he was fourteen, knew he faced an uphill battle. His proposal was opposed by the Transportation Department, then twice defeated in the House, first in an Appropriations subcommittee and again in the full committee. Only deft maneuvering and an assist from Claude Pepper of Florida, the chairman of the Rules Committee (who had helped create the National Cancer Institute as a senator in the 1930s), brought the Durbin amendment to the House floor and presented the first direct challenge to tobacco’s dominion.
The floor debate was a microcosm of the larger fight over tobacco. Supporters of the amendment, including me, emphasized the overwhelming scientific consensus about the dangers of secondhand smoke: the National Academy of Sciences, the American Cancer Society, and the surgeon general all agreed. Furthermore, polls showed that two-thirds of Americans supported a smoking ban on airplanes. The industry’s allies threw up every obstacle they could, arguing against the amendment on grounds of procedure (it had been defeated in subcommittee), cost of compliance (an industry group ginned up the figure of $613 million), safety (desperate addicts would surreptitiously smoke in airplane lavatories, creating “an onboard fire hazard”), complacency (“If it ain’t broke, don’t fix it”), and even, oddly enough, constitutionality (“It seems to me that under our Constitution,” Representative Dan Daniel of Virginia argued, “under our form of government, our philosophy, that if a person wants to smoke, they have the right to do that”). Others resorted to ridicule and scare tactics. Tom DeLay of Texas warned that “a smoking patrol” would “interrogate passengers” as they disembarked. Jim Bunning of Kentucky conjured up Orwellian squads of “smoke sniffers” crawling through airplanes to hunt for rogue puffers.
It was a reflection of tobacco’s power, of how thoroughly the industry had conditioned Americans to accept the ubiquity of cigarette smoking, that being forced to sit for hours in a big metal tube and breathe other people’s tobacco smoke needed to be debated at length on the floor of Congress. But as voting began, the outcome was very much in doubt. In the end, the Durbin amendment squeezed through by a single vote (the final tally being 198-193 after several members switched sides to keep up appearances once the outcome became clear) to everyone’s surprise, including Durbin’s.
NOT UNTIL 1993 DID WE ACHIEVE A BREAKTHROUGH THAT TRULY began to shift the balance of power. Our greatest difficulty in battling the tobacco industry had been our frustrating inability to find out what was happening on the inside. A veil of silence shrouded and protected the industry, which forced its employees, including scientists and researchers, to sign nondisclosure agreements that forbade them from revealing any internal information. But a handful had quietly begun to talk.
A convergence of several factors that year convinced our team that the time had come to intensify our campaign. The EPA had just released a comprehensive risk assessment of secondhand smoke certifying its carcinogenic qualities and revealing that children were at especially high risk. The report concluded that secondhand smoke was a “Class A” carcinogen like asbestos, arsenic, and benzene that caused three thousand lung cancer deaths each year. In response, we introduced legislation banning smoking in restaurants and federal buildings. Around the same time, David Kessler, the FDA commissioner so outspoken about the dangers of dietary supplements, announced plans to consider regulating cigarettes as a drug, after learning that the tobacco companies were manipulating nicotine levels to addict more smokers. Along with Congress and the federal agencies, the news media, too, had renewed their interest in Big Tobacco, delivering several penetrating investigations, none more illuminating than a Wall Street Journal series entitled “Smoke and Mirrors” that documented the industry’s “massive effort to cast doubt on the links between smoking and disease” by creating and funding entire organizations devoted to manufacturing bogus scientific research. The Health and Environment Subcommittee became a kind of clearinghouse for emerging information, as we held hearing after hearing and issued reports that drove the issue ever closer to the center of public attention.
Visibility brings sources. As stories about our oversight hearings appeared more and more frequently in newspapers and on television, a handful of researchers and scientists who had done work for tobacco companies got in touch with the committee and provided the first glimpse behind tobacco’s iron wall. What they described was often astonishing: tests on children to see how they reacted to tobacco smoke; cigarette advertising designed to hook children in order to capture their “brand loyalty” early in life; a South American laboratory where company scientists experimented with gene manipulation to produce a tobacco plant with a higher level of nicotine. One particularly helpful informant, a former research scientist at Philip Morris named Victor DeNoble, described to us how he had conducted comprehensive studies in the 1980s that demonstrated nicotine addiction and tolerance in rats—studies that Philip Morris had, in fact, twice forbidden him to publish. The company continued to insist publicly that its products were not addictive. This knowledge strengthened our resolve and helped guide our investigations and hearings. But the nondisclosure agreements prevented our sources from testifying or supplying the government with documentary evidence. We needed to find a way to share what they were telling us with the American public.
OVER AND ABOVE OUR INABILITY TO CALL THESE SCIENTISTS AND researchers as witnesses, an abiding frustration of the oversight hearings was the witnesses the industry did put forward. These were the highly compensated “experts” stationed at industry front groups like the Tobacco Institute and the Council for Tobacco Research whose work was bought and paid for precisely so that when Congress took up the issue of smoking it could be claimed that scientists remained uncertain as to whether tobacco had deadly effects. Although these fraudulent experts were always offset by our own legitimate ones, the very nature of a congressional hearing and its coverage in the news media creates a false equivalency that muddies the question of truth. Both sides tend to be treated equally, regardless of merit—which is, of course, precisely what the industry always counted on.
It was always clear to us that a major reason why the tobacco industry got away with such patent deception was because it operated through just these sorts of carefully chosen proxies. Tobacco had the best spokespeople, lawyers, lobbyists, ad men, and corporate icons that money could buy. This allowed the industry to hide the truth: that the very wealthy and powerful CEOs who controlled the seven major tobacco companies preyed on millions of people, including children, to generate ever larger profits at an enormous cost to society. The vast gulf between tobacco’s myth and its reality was maintainable only because the American public had never been made to confront this disparity. We became convinced that the key to shattering tobacco’s public image and exposing the industry for what it really was (a necessary precursor to any serious reform) lay in setting up just such a confrontation.
By the spring of 1994, the collective weight of congressional investigations, oversight hearings, and pending legislation, along with Kessler’s efforts at the FDA, had thrust the tobacco industry into the unaccustomed position of being on the defensive. Getting a significant bill through Congress remained an unlikely proposition. But the weight of public opinion was beginning to swing against the industry. Americans were particularly repelled by the charge that tobacco companies were spiking the nicotine level in cigarettes to induce addiction—a turn of affairs that frightened the industry sufficiently that it filed a $10 billion libel suit against ABC News for its reports on the subject.
To force the issue, we invited Kessler to testify before the subcommittee about nicotine spiking. He appeared on March 25, 1994, to state that he considered cigarettes to be “high-technology nicotine delivery systems”—drugs, in other words—that warranted FDA regulation. In riveting testimony, he described the intricate methods by which tobacco companies controlled nicotine delivery, punching tiny holes in cigarette filters, for instance, to make “inhalation” more difficult for the smoking machines that government scientists use to measure tar—holes that an actual smoker would cover with his lips or fingers, thereby increasing the potency of the smoke and the amount of tar inhaled. Having put these public charges into play, I thanked him for his testimony, and, noting that the industry denied these claims, I issued a very public invitation to the seven tobacco company CEOs to appear before the subcommittee and offer a rebuttal. To raise the stakes even further, we announced that they would be the only witnesses invited to testify—and made clear that the hearing would be held whether or not they agreed to appear. If they chose not to avail themselves of the opportunity, the television cameras would capture seven empty chairs, leaving the public to draw its own conclusions about whether the tobacco industry had something to hide.
THERE WAS NO REASON, NO VALID ARGUMENT TO MAKE, FOR WHY they could not present themselves. The New York Times editorialized in favor of the idea, adding to the steadily growing pressure. Ultimately, they agreed to testify before the subcommittee on April 14.
For all the clamor, they probably did not regard the hearing as a serious threat, and certainly not as the pivotal moment that it wound up becoming. To all outward appearances, in fact, it hardly seemed a fair fight: a subcommittee chairman and his handful of allies against the most formidable industry Washington had known in forty years, its legions of high-priced lawyers and fixers filling up the gallery behind the seven powerful men at the witness table.
My own belief is that the CEOs viewed the hearing not as a threat but as an opportunity. The proceedings were taking place against a backdrop of growing populist anger at Washington and the Democratic Party that controlled it. Driven by aggressive Republican leaders like Newt Gingrich and Tom DeLay, momentum was already building toward what would become a historic rout in the midterm elections seven months hence that would deliver Congress to the Republicans. The popular Republican charge that Democrats favored intrusive big government was one the tobacco companies eagerly adopted, portraying their executives as victims of a power-addled chairman bent upon taking away everybody’s cigarettes. But as the CEOs stood in a row to be sworn in, they were unprepared to be confronted by facts rather than partisan ideology.
My staff and many of the members most closely aligned with us had spent weeks preparing for the showdown. We had organized the hearing around four issues that would be the focus of relentless questioning: What were the health effects of smoking cigarettes? Did the tobacco companies believe nicotine was addictive? Did they market cigarettes to children? Did they manipulate the nicotine level in their products?
Over the next seven hours, under the full glare of the spotlight, the CEOs testified together for the first time. Their struggle to provide compelling answers to these questions and the self-evidently false nature of so much of their testimony forever changed the way that Americans view the tobacco companies. At every turn, they denied that cigarettes were addictive, and yet readily admitted that they would prefer their own children not to smoke. The inconsistencies were plain for all to see.
One of the day’s most starkly memorable exchanges occurred between me and Andrew H. Tisch, chairman and chief executive of the Lorillard Tobacco Company, who had stated in an earlier sworn deposition that he did not believe cigarettes caused cancer. I asked him again whether he knew that cigarettes caused cancer.
“I do not believe that,” he replied.
“Do you understand how isolated you are from the scientific community in your belief?”
“I do, sir.”
The tobacco executives also denied marketing to children. Hearing this, Mike Synar of Oklahoma displayed an advertising poster that showed Joe Camel in a nightclub surrounded by young people who were hanging out and smoking. Synar pressed the executives repeatedly to explain who the ad was intended to reach, if not kids. As the back-and-forth proceeded, people could see the facts for themselves simply by looking at the poster. The CEOs’ positions became harder and harder to defend.
Our plan for the day was to extract more than just testimony. A high-profile hearing temporarily shifts the balance of power, presenting opportunities to those with the presence of mind to exploit them. Drawing out the CEOs gave us a brief tactical advantage by eliminating the lawyers and public relations types ordinarily in a position to run interference. It exposed the decision makers themselves, and did so on a public stage that limited their ability to dissemble. Synar used this advantage to spring a trap. Drawing on what we knew from Victor DeNoble, he asked William Campbell, the president and chief operating officer of Philip Morris, whether the company, despite its earlier denials, had indeed suppressed DeNoble’s study showing that laboratory animals could become addicted to nicotine. Campbell admitted that it had. Synar pressed further. In light of this news, would the company agree to waive DeNoble’s secrecy agreement and allow him to testify about his work? Campbell at first tried to hedge, replying that he’d have to check with the company’s lawyers to see if that would be possible. Synar wouldn’t relent, pointing out that Campbell, as the head of the company, had the final say. With the cameras rolling, it became impossible to hold out. Campbell was trapped. He reluctantly agreed to let DeNoble testify, setting the stage for the next act of the drama.
By day’s end, each of the tobacco chiefs had agreed, however grudgingly, to provide Congress with extensive, previously secret research that their companies had performed on nicotine addiction in humans and animals.
THE CEOS DID NOT SUBMIT MEEKLY TO OUR CHARGES. WHAT THE “anti-tobacco industry wants is prohibition,” James W. Johnston, chairman and chief executive of R. J. Reynolds Tobacco Company, declared in his testimony. Accusations of prohibitionist fanaticism filled the air, even though tobacco’s opponents, myself included, had repeatedly stated that, while we did support regulating cigarettes and wanted to find ways to lessen the health and safety dangers they posed, we had no intention of seeking to ban them outright.
In the days that followed the hearing, the industry went back on the offensive, marshaling the full strength of its forces to push back against the congressional “witch hunt.” But the charge never really gained traction. Big Tobacco seemed to have lost its grip on its own public image. The iconic picture of the seven CEOs being sworn in supplanted, in most people’s minds, the ad-generated myth that the industry had so brilliantly carried off for so long. And the impoverished arguments the executives had put forth at the hearing—Reynolds claimed that cigarettes were no more addictive than Twinkies—collapsed of their own weight. We had accomplished our primary purpose: The industry’s image was indelibly stained.
The new face of the industry—its real face—was that of executives in suits denying that cigarettes caused disease, denying that nicotine was addictive, denying having manipulated nicotine levels in cigarettes, and denying that they targeted kids—each of which turned out to be untrue. The hearing was a frontal assault on all that the industry had built up, and afterward it could no longer sustain the ruse. The very concessions that the CEOs granted us, waiving DeNoble’s secrecy pact and agreeing to turn over internal documents, became the seeds of the industry’s undoing, getting into the public record a massive chronicle of decades of harm and deception.
Even as the CEOs were testifying, the calls started pouring into our office from industry insiders outraged that their executives would so blatantly lie. Some of the most important witnesses against the industry, including Jeffrey Wigand, the vice president of research and development for the Brown & Williamson Tobacco Company, whose story was the basis for the hit movie The Insider, came forward after watching the hearing.
Two weeks after the CEOs testified, Victor DeNoble and his research partner, Paul Mele, appeared before the subcommittee to discuss their work for Philip Morris on the pharmacology of nicotine and its addictiveness in animals. Armed with graphic pictures, they described experiments in which rats were taught to depress levers that administered an intravenous injection of nicotine, how they gradually developed a tolerance that demanded ever greater amounts to achieve the same effect, and how they finally chose their nicotine fix over water. DeNoble testified that this research suggested that nicotine was addictive “on a level comparable to cocaine,” a conclusion that completely contradicted the testimony given by his own company’s CEO just days earlier.
Soon after that, we received secret documents from inside Hill & Knowlton, the formidable public relations firm retained by the tobacco industry’s trade association, showing how the industry had known for decades that tobacco caused cancer and had embarked on an elaborate disinformation campaign rather than come forward with the truth. The committee released this information to the public.
A week after that, Mississippi’s attorney general, Mike Moore, turned over internal documents from Brown & Williamson provided by an informant in the state’s class action suit against the tobacco companies. The documents revealed that the company had known about tobacco’s harmful effects and addictive nature for decades. They included a 1963 memo by Brown & Williamson’s general counsel that stated: “We are, then, in the process of selling nicotine, an addictive drug.” This blatantly contradicted the testimony given by Brown & Williamson’s CEO, Thomas Sandefur, at the April 14 hearing, prompting us to schedule another hearing to determine whether Sandefur had knowingly lied to Congress. Brown & Williamson had other ideas. The company sued me and Representative Wyden in a Kentucky circuit court to reclaim their leaked documents and shut down the investigation. A federal district court judge quashed the subpoenas, accusing Brown & Williamson of trying to “intimidate” Congress, and noting that the Constitution’s speech and debate clause protects members from legal actions stemming from their official duties. Sandefur reappeared before the subcommittee on June 24, claiming not to have read the incriminating documents, and reiterated his belief that nicotine was not addictive. “I am entitled to express that view, even though it may differ from the opinions of others,” he said.
With every new revelation, the industry’s standing eroded a little further.
THEN, IN NOVEMBER, WE WERE DEALT A TREMENDOUS SETBACK. It came not from the tobacco industry but from the American voters, who swept the Republican Party into power, forcing me out of the subcommittee chairmanship and bringing the tobacco hearings to a sudden, grinding halt. The new Republican chairman of the House Energy and Commerce Committee was Tom Bliley of Virginia, sometimes referred to as “the congressman from Philip Morris” because the company’s main manufacturing facility was located in his Richmond district. Bliley did not, needless to say, have a great deal of interest in carrying on our investigation.
But the momentum against tobacco had gathered enough strength that even this substantial shift of power could not stop it. Dozens of state lawsuits against the industry were moving forward. And although we were now operating from the minority, we continued to benefit from all that we had set in motion, receiving a series of internal tobacco company documents that we in turn released to the public. These included new examples of the companies’ spiking the nicotine level in cigarettes and evidence of how they misled the Federal Trade Commission about tar levels.
In 1995, we obtained internal documents revealing that Philip Morris had conducted studies on children and tobacco smoke, going so far as to examine hyperactive third-graders to see if they were a potential market. We had found that children were a very effective way to dramatize the overall dangers of tobacco and shame its supporters into relenting, so this was a particularly important leak. But one problem with being in the minority was that we could no longer convene a hearing to publicize this dramatic news. Simply disclosing the documents at a press conference might have put us in legal jeopardy. The Constitution’s speech and debate clause guaranteed protection for members only during sessions of Congress. It wasn’t clear that a court would agree that press conferences constituted official House business, and the proven litigiousness of the tobacco industry suggested a high likelihood that it would test the proposition. So in order to make the documents public, I went to the House floor and read their entire contents into the Congressional Record. Afterward, with the media clamoring to discuss this important new information, I had to decline all press requests since nothing I said to reporters was assured of being protected speech.
In late 1997, we got hold of something even more explosive: internal reports and memoranda from the boardroom of R. J. Reynolds revealing that the company had for decades targeted children as young as thirteen years old to reverse its flagging sales. The documents laid out, from conception to fruition, the Joe Camel marketing campaign and the rationale behind it. In the 1970s, RJR’s board of directors was concerned that its Camel brand was paling in popularity to Marlboro among the youngest smokers. Reports stamped “RJR SECRET” described how the company set out to win the kind of fierce brand loyalty that is usually established among lifetime smokers before age eighteen. “To ensure increased and longer-term growth for Camel Filter,” warned a memo, “the brand must increase its share penetration among the 14-24 age group.” The Joe Camel campaign aimed to “youthen” the brand’s appeal—which the company’s advertising agency described as “about as young as you can get”—debuted in France before moving to the United States in 1987. That same year R. J. Reynolds also created a specialty brand for the youth market, describing “Camel Wides” in a memo as a “wider-circumference nonmenthol cigarette targeted at the young adult male smoker (primarily 13-24-year-old male Marlboro smokers).”
At the April 1994 hearing, R. J. Reynolds’s chairman and CEO, James Johnston had attacked members of the subcommittee for questioning him about whether his company marketed to children. “The charge that’s always buried at the industry is you have to go out and recruit these new smokers, you just have to,” Johnston had thundered. “And the answer is that would be the stupidest thing we can do…. We do not market to children and will not!”
From the very beginning, the purpose of the oversight hearings had been to build a public record and eventually create enough momentum in Congress and among the American public for legislation to mitigate the terrible health effects of tobacco. In 1979, when I became chairman of the subcommittee, the industry’s power was such that this goal was widely regarded as a bit eccentric and certainly hopeless, a view that more or less prevailed for the next fifteen years.
But by 1996, the actions of Congress had dramatically changed public perception of the industry and made real the possibility that comprehensive tobacco legislation could soon be forthcoming. Meanwhile, the multitude of state lawsuits posed a serious financial threat. Tobacco still held enormous power in Washington. But the landscape had changed.
At the time, Tom Bliley and I had forged a successful legislative partnership, having just negotiated major bipartisan agreements on regulating pesticides and drinking water. It was an interesting coincidence that this fruitful collaboration had arisen between two men widely regarded as being, respectively, the most pro- and anti-tobacco members of Congress. But having found common purpose on other seemingly intractable problems, we decided to give tobacco a try, too.
Our negotiations for a comprehensive tobacco bill followed the same model as they had for the pesticide measure, utter secrecy of the proceedings guaranteeing both sides the political cover necessary to explore compromises. Only Newt Gingrich, the Republican speaker of the house, and Richard Gephardt, the Democratic minority leader, were kept apprised. Unlike pesticides, which we had resolved in a marathon three-day meeting, regulating tobacco was a subject so knotty and complex that our negotiations carried on for two years. Throughout it all, both Gingrich and Gephardt steadily encouraged us to continue.
Negotiations were complicated by the fact that, publicly, Bliley and I represented opposite sides of a contentious issue. Anyone who watched us square off at a tobacco hearing could have been forgiven for assuming that we were mortal enemies. We were not. Bliley believed deeply in his ideological positions, as I did, and defended them vehemently. But by sitting next to each other for so long, we had developed trust and respect for each other. Once, during my chairmanship, I expressed sympathy for the toll that I imagined the hearings must be taking on him. “You do what you have to do, Henry,” he replied. Bliley didn’t wink; he wasn’t happy about the hearings. But he was a thorough professional who understood that you argue positions on the merits and don’t make it personal, he knew exactly why the hearings were happening, and he was a true public servant, whatever the difference in opinions.
In 1998, we finally reached an agreement that would resolve all the major tobacco issues, including broad federal regulation, strict curbs on youth smoking, and much stronger limits on smoking in public places. The centerpiece was not some heavy-handed government mandate but a market-based enforcement mechanism designed to reduce teen smoking. Our idea was to conduct a broad survey to establish a baseline of which brands of cigarettes kids smoked and at what volume. The tobacco companies would then be required to reduce sales to kids, penalizing any brand that failed to do so with a higher tax. This would give the companies themselves the incentive to reduce sales rather than putting all their effort into finding a way around some new law. Democrats could support the idea because it would reduce smoking, especially among the most vulnerable population, along with the attendant costs to government. Republicans could support it because it was a market-based, rather than a regulatory, approach that didn’t include the $2-a-pack tax then at issue in the Senate.
When Bliley told Gingrich, “I’ve got something with Henry,” he was invited to make a presentation to the Republican leadership a few days later. But Gingrich and I were heavily embroiled on opposite sides of Dan Burton’s ongoing crusade against President Clinton in the Government Reform Committee, and Gingrich had recently taken to the House floor to attack me for refusing to grant immunity to several witnesses Burton was eager to have testify. (I had responded with what I considered the obvious charge that Gingrich and Burton were engaged in a witch hunt.) The timing couldn’t have been worse. At the meeting, Gingrich, who always nursed grudges, led the charge against the compromise, forbidding Bliley, a major committee chairman, even to call up the bill for consideration. Our hopes for a compromise ended right there.
WHILE THE FAILURE TO PUSH THROUGH A STRONG LAW WAS FRUStrating, the risk that Congress might settle for a weak one became a real concern. In the summer of 1997, much to my surprise, a group of anti-tobacco activists led by Mississippi attorney general Mike Moore announced that they had reached a broad settlement with the tobacco companies resolving forty state lawsuits and eighteen class actions filed on behalf of individual smokers. The industry had agreed to pay $368 billion over twenty-five years to help offset the cost of treating smoking-related illnesses and fund anti-smoking programs, and also accepted bans on advertising figures like Joe Camel and the Marlboro Man. In exchange, the deal effectively barred the FDA from regulating nicotine and gave the industry what it wanted most: immunity from further legal liability. All that was left was for Congress to ratify the deal in the form of a new law.
The problem, as so many of us saw it, was that the agreement demanded far too little of the tobacco companies. The industry’s payout amounted to about $15 billion a year, much of which would go toward paying attorneys’ fees. Meanwhile, smoking imposed $100 billion a year in health care costs and, the National Center on Addiction and Substance Abuse at Columbia University estimated, would cost Medicare alone $800 billion over the next twenty years. By shielding the tobacco companies from liability, the agreement foreclosed the possibility of recouping these costs. The desire among plaintiffs’ lawyers for a quick and lucrative settlement had produced something that struck me as thoroughly indefensible. As former Surgeon General Koop put it, “I think we’ve been snookered.”
This was a worrisome prospect because outside advocacy groups like the American Cancer Society and the American Heart Association can powerfully affect the legislative process when they decide to push hard for something. Were they to join forces with the tobacco industry, the resulting bill would be difficult or impossible to stop.
Without the chairman’s gavel, it was impossible to hold a hearing that would call attention to the weakness of the agreement. Or, at least, doing so in Congress was impossible. As we debated how to proceed, some colleagues and I had an idea: Why not hold a hearing outside Congress and draw on the same prominent experts whose testimony we would have solicited had we been in the majority? Thus was established the Advisory Committee on Tobacco Policy and Public Health, an independent panel co-chaired by former FDA commissioner David Kessler and former Surgeon General Koop. A bipartisan group of legislators, myself included, asked this new panel to study the agreement and recommend a national tobacco policy. The panel would conduct a series of open hearings on Capitol Hill, just as if it were an actual congressional committee.
Our shadow committee had precisely the intended effect. The Clinton White House and the news media recognized the enormous credibility that Kessler and Koop brought to the subject, and treated the proceedings as being vitally important to the fate of the agreement. In July, the advisory committee declared the proposed agreement “unacceptable” and laid out a much stronger alternative plan to control smoking. The White House immediately began distancing itself from the original settlement. The committee also had a powerful impact in the Senate. As details of the shortcomings became public, John McCain started insisting on changes that strengthened his bill, alarming the tobacco industry, which spent tens of millions of dollars to kill it, and prompting the Republican leadership to abandon it. By September, the settlement was effectively dead.
OVER THE NEXT DECADE, THE TOBACCO WARS DRAGGED ON IN Congress and the courts. The industry reached a $206 billion Master Settlement Agreement in 1998 that ended the state lawsuits. The following year, the Clinton Justice Department sued for additional billions for conspiracy to defraud and mislead the public about the health effects of smoking. But even the full might of the federal government could not rob Big Tobacco of its Washington clout. In 2000, the U.S. Supreme Court ruled 5–4 that the FDA lacked the authority to regulate tobacco as an addictive drug, putting the burden on Congress to pass a law granting such authority. Here, tobacco made its stand. Where once it had barely distinguished between the parties, the industry increasingly allied with Republicans during the 1990s. When George W. Bush took office in 2001, giving the GOP full control of the White House and Congress, political progress on tobacco slowed to a crawl. That the industry could still jam the gears of government despite all we had done to weaken it was an illustration of just how entrenched it remained.
But its legal and public relations woes continued to mount. Powerful interest groups follow a pattern as they decline. Overt political force and intimidation gradually give way to obstruction and denial. When the facts have become clear and the scrutiny overwhelming, when the last wisp of uncertainty has evaporated, then defeat looms and they scramble to salvage what they can.
In 2004, partly as a way of trying to salvage its public image, the nation’s largest tobacco company, Philip Morris, reversed its stance on regulation and endorsed a bipartisan bill giving the FDA jurisdiction. (The rest of the industry remained opposed, charging that Philip Morris was simply seeking to lock in its favorable market position.) After marrying the regulation to a $12 billion, ten-year program to buy out tobacco growers hard pressed by a dwindling market, the Senate overwhelmingly approved the bill. Economic necessity, rather than direct political pressure, cinched the deal. But years of negative publicity, much of it generated by Congress, had brought this about by thinning the ranks of smokers. “I think FDA regulation is a bad idea,” Senator Jim Bunning, the Kentucky Republican, said. “But my growers are in dire straits and they need help.”
House Republicans remained hostile to the idea and refused to take action on a counterpart to the Senate bill. Their relationship with tobacco was so tight that when Tom DeLay, their majority leader, was indicted on conspiracy charges by a Texas grand jury in 2005, he flew to his arraignment on a plane owned by R. J. Reynolds Tobacco. But after Republicans lost control of the House in the 2006 election, tobacco’s grip weakened. The following year, Tom Davis and I introduced the Family Smoking Prevention and Tobacco Control Act, giving the FDA regulatory authority and ensuring that tobacco is not advertised or sold to children. In July 2008, the bill had such strong support that it easily cleared the House. A veto threat from President Bush and Republicans’ determination to filibuster prevented the Senate from taking action. But by now, it was only a matter of time.
ONE OF THE GREATEST TRAVESTIES THAT I HAVE WITNESSED DURing my long career was the government’s failure to assert jurisdiction over the most deadly product sold in America. From the moment I arrived in Congress anyone who cared to look could see that our nation’s health depended on congressional action to confront the threat from smoking. Year after year cigarettes killed millions of people.
The tobacco industry operated in a realm beyond ordinary corporate responsibility. Our government forbids manufacturers of things like automobiles, food, and drugs from recklessly endangering consumers. When they do so, they’re called to account. We don’t allow them to suppress evidence, ignore scientific research, or continue following whatever pattern of behavior has caused harm, and we demand that their executives explain themselves before Congress and the public.
Yet for decades, Big Tobacco managed to avoid these basic requirements.
At first, its enormous power foreclosed the very possibility of major legislation. Instead, we attacked tobacco’s public image and incrementally improved the law—on warning labels, smokeless tobacco, and airplanes—however and wherever we could. But ultimately it was oversight, rather than legislation, that made the greatest impact on our nation’s relationship to tobacco.
Cigarette smoking remains the leading preventable cause of death in the United States; worldwide it kills more than five million people each year. But the percentage of the U.S. population that smokes has fallen steadily, from 37 percent of all adults in 1974 to fewer than 20 percent in 2007. Even more important is the trend among kids. Since the late 1970s, the percentage of high school seniors who smoke daily has fallen by nearly two-thirds. And since 1991, when researchers first started keeping track, the percentage of eighth-graders who smoke has dropped by more than half.
Tobacco continues to kill at an alarming rate. But the prospects for change are brighter than at any time since I’ve been in Congress. On January 21, 2009, a fellow struggling ex-smoker took the oath of office, shifting the dynamics of the tobacco fight once again, this time likely with historic repercussions. Soon after Barack Obama became our forty-fourth president, and thirty years after I began my push for tougher legislation, the House and Senate began work on a comprehensive bill authorizing the FDA to at last regulate nicotine in cigarettes—a bill that President Obama has promised to sign.