
                         Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: TUESDAY, April 9, 1991                   TAG: 9104090535
SECTION: EDITORIAL                    PAGE: A8   EDITION: METRO 
SOURCE: 
DATELINE:                                 LENGTH: Medium

LIABILITY

TOBACCO companies for years resisted efforts to require printed health warnings on their packages and advertisements. Now, somewhat ironically, they want to use those warnings to escape liability for the huge death toll and health costs that their products cause.

The U.S. Supreme Court has recently agreed to decide a case raising this question: Should the now-familiar warning labels - federally mandated since 1966 - immunize cigarette companies from lawsuits brought under state liability laws?

If the court resists judicial activism and is guided by what Congress intended, it will rule against the cigarette manufacturers. There's good evidence that Congress saw the warnings as perhaps a legal defense during trials, but not as a foolproof shield against any lawsuits.

Moreover, a court friendly to states' rights would not, in effect, overturn states' tort laws. The federal warning statute contains no prohibition against lawsuits.

At stake, however, are issues trickier than such technical findings. By our reading, the labels do forewarn smokers that they are risking their lives. How else to read, for example: "The Surgeon General Has Determined That Smoking Is Dangerous To Your Health"? Whatever happened to individual responsibility?

On the other hand, it is argued - in civil courts and elsewhere - that manufacturers neutralize the warnings' effect with seductive and targeted advertising. If smokers do realize they are killing themselves, it might be argued the warnings are inadequate because cigarettes are so addictive.

There is perhaps a meaningful distinction between a reasonably well-informed adult who chooses to take up smoking despite the warnings, and someone who started, say, as a 14-year-old kid and became hooked on nicotine. (Former Surgeon General C. Everett Koop has called it "the most addictive drug.")

In the former case, it's hard to see why a cigarette firm should be held liable - or juries should award damages - for any resulting health damage. In the latter case, an argument for tobacco companies' culpability might be easier to make. Indeed, cigarette manufacturers' advertising increasingly targets young people.

It could be argued that the risk of lawsuits would act as a brake on marketing efforts that obfuscate the health warnings. This is not, however, the best policy.

The best policy is for smokers to heed the warnings and kick the habit. Never mind the check your relatives may get, after you die, if their lawyers can convince a jury that a cigarette company's warnings were insufficient. The warnings are clear and ubiquitous: Smoking kills.

Litigation, moreover, is not an efficient means of assessing damages. A better method would be to determine the health costs of smoking and levy that amount, or a good portion of it, in federal taxes on tobacco products.

Those costs have been borne by non-smokers as well as smokers, through employee insurance, Medicaid and other means. Taxed appropriately, cigarettes might cost $5 a pack - but so what?

Some people, especially kids, might be deterred from buying them. And the price of cigarettes ought to reflect more of the cost of what amounts to a massive industry of assisted suicide.

by CNB