Big Tobacco may talk of transitions. Its pursuit of profits speaks louder.

ciggy-166x300Consumers, politicians, and federal regulators should not make the mistake of thinking that Big Tobacco somehow will go, as the poet put it, quietly into that good night.

The fortunes are still too big to be made in peddling products that persist as some of the greatest preventable threats to Americans’ health, industry players keep reminding us all — most recently by suing to block California voters upholding a ban of flavored tobacco and by taking a last-minute investors’ reprieve to reorganize a pioneering vaping company that was on the brink of bankruptcy.

The Golden State had not even finished tallying its midterm 2022 votes when RJ Reynolds marched into federal court to challenge the newly and overwhelmingly approved referendum to allow a two-year-old state law to take effect barring within weeks the sale of flavored tobacco and vaping products. As the New York Times reported:

“Tobacco companies had turned to the ballot initiative in an apparent effort to delay the ban and put the matter to a popular vote. The move ‘allowed tobacco companies to earn $1.1 billion in revenue while 37,000 youth tried candy-flavored tobacco products,’ Laurent Huber, the executive director of Action on Smoking and Health, an advocacy group, said in a statement. After the companies’ defeat on the ballot, Reynolds’s lawsuit renews an industry argument that local and state governments do not have the right to challenge federal law under the Tobacco Control Act, which gives the Food and Drug Administration the authority to regulate tobacco. The argument was rejected by the U.S. Court of Appeals for the Ninth Circuit, which ruled against Reynolds in March, after the company sought to overturn Los Angeles County’s ban on flavored tobacco products. Reynolds is trying to appeal the decision to the U.S. Supreme Court.”

The newspaper reported that California would not be the first state with a prohibition against sales of flavored tobacco and vaping products:

“California would be the second state, after Massachusetts, to impose a ban on all flavored tobacco; the sale of menthol cigarettes would be prohibited as well. Other states, Rhode Island, New York, and New Jersey, have outlawed flavored vaping products, as have numerous cities and counties, in an attempt to thwart teenagers from taking up the addictive habit. So far, legal challenges to those bans have failed.”

Big Tobacco is battling for flavored products, as critics have pointed out, for big economic reasons: Menthol long has served as a gateway to hustle deadly but highly profitable flavored cigarettes to communities of color, proving especially popular with and damaging to black consumers. Sweet and candy-like flavorings have become a major draw for e-cigarette and vaping product makers to lure young consumers, with industry leaders like Juul combining nifty-looking devices and higher doses of extremely addiction nicotine to amp up the allure of their wares.

The federal Food and Drug Administration for several years now has raced to catch up with the technological, marketing, advertising, and sales savvy of the vaping industry, issuing progressively tougher restrictions but also failing to prevent a new generation of consumers from getting hooked on unhealthy habits.

Still, regulators have not cleared markets of devices and products they say haven’t proven their safety and health benefits (as alternatives to the proven lethal damages of cigarette smoking) enough to continue to be sold. The stern oversight has upended the finances of Juul, which is battling an FDA ban of its products and has announced that a shot of support from its earliest funders will keep the company out of bankruptcy, continuing in business for now, and likely soon to reorganize with major layoffs. Big Tobacco also has become a stalwart of the vaping business, either with big (and now losing) investments in companies like Juul or with RJR marketing its own highly popular Vuse vaping devices.

The New York Times, in a separate news article, reported that Big Tobacco is trodding a tough path as its claims to be shifting from its old business model, raking in huge money and caring little how it did so, to at least talking a good game about its commitment to safeguarding consumers’ health:

“Big Tobacco has said it embraces the transition [of its industry] — sort of. ‘We have an unprecedented opportunity to move beyond smoking,” Billy Gifford, chief executive of Altria, one of the world’s biggest cigarette conglomerates and the parent company of Philip Morris USA, told Wall Street analysts and investors in late October. The opening slide of his presentation offered a company vision: ‘To responsibly lead the transition of adult smokers to a smoke-free future.’ Major cigarette companies, like Altria and R.J. Reynolds, acknowledge that cigarettes are dangerous and addictive, and they are heralding their investments in electronic cigarettes and other less-harmful alternatives to cigarettes. But, with much less fanfare, they are taking steps to slow the very smokeless future they claim to want: The companies have submitted letters protesting the proposed menthol ban in traditional cigarettes, and they have signaled they will similarly resist any efforts to lower nicotine levels.”

The newspaper article also reported this:

“As the smoking population in the United States has fallen to 13% from 21% in 2005, far from a peak of about 45% of adults in 1954, and public opinion has turned against cigarettes, the legal and political might of Big Tobacco has shrunk, too. A Gallup survey conducted in July found that 74% of Americans favored ‘requiring tobacco companies to lower nicotine levels in cigarettes to make them less addictive.’ About 42% favored banning menthol-flavored cigarettes … But the industry still earns billions of dollars in revenues, and it hopes to use its remaining clout to stall these monumental proposals at the regulatory level and in court — or stop them altogether.”

In my practice, I not only see the harms that patients suffer while seeking medical services, but also the clear benefits they may enjoy by staying healthy and far away from the U.S. health care system. It is, according to research conducted in pre-coronavirus pandemic times, fraught with medical errorpreventable hospital acquired illnesses and deaths, and misdiagnoses.

If you don’t smoke, please don’t start. If you smoke, talk to your doctor, and make the challenging effort to stop. There are other ways to do so without taking up vaping. No one argues it is good for you — just that it is less harmful and another possible way to quit smoking. That’s a dubious health argument, akin to asking whether it’s “better” to die in a car or plane crash. Neither thank you.

Sure, public health officials are moving to advocating for “harm reduction” strategies, realizing the limits of trying to impose bans or absolute prohibitions against detrimental health behaviors, including substance abuse and cigarette smoking. This approach, though, allowed the figurative camel to sneak its nose under the tent via vaping and for Big Tobacco to try to reverse decades of plunging use abetted by nicotine addiction. Some grownups may lessen cigarettes’ detrimental effects by weaning themselves off tobacco with vaping and e-cigarettes.

Still, as the federal Centers for Disease Control and Prevention has reported:

“Cigarette smoking causes more than 480,000 deaths each year in the United States. This is nearly one in five deaths. Smoking causes more deaths each year than the following causes combined: Human immunodeficiency virus (HIV), illegal drug use, alcohol use, motor vehicle injuries, and firearm-related incidents.”

Need more arguments against nicotine, tobacco, smoking, and vaping? Consider this information from the New York Times report on the shifting fortunes of Big Tobacco and its need to claw consumers:

“Traditional cigarettes have become more expensive … A study published this year in JAMA found that from 2015 to 2021, the number of packs of cigarettes sold in the United States fell to 9.1 billion a year from 12.5 billion, a 27% drop. To compensate, tobacco companies increased prices — rising 29.5% a pack during that period, to $7.22 from $5.57. Inflation plays a role, too. In the first nine months of this year, Altria reported a steep 9% decline in sales volumes, with executives noting that customers were changing behaviors to save money, like buying single packs of cigarettes, rather than cartons.”

Tobacco merchants, active in U.S. colonial times, have had more than enough time to wise up, get ridiculously wealthy, and to realize that they need to get into a business that does not injure and kill people as a matter of course. We need to stop profit-seeking corporatists from wrecking the health of so many, and by throwing around their cash to meddle with our political and regulatory systems. We have much work to do to extinguish smoking and vaping and to end the relentless nightmares inflicted on us by Big Tobacco.

Patrick Malone & Associates, P.C. listed in Best Lawyers Rated by Super Lawyers Patrick A. Malone
Washingtonian Top Lawyer 2011
Avvo Rating 10.0 Superb Top Attorney Best Lawyers Firm
Contact Information