Smoking, Custom and The Law
Democracy rests on three assumptions: personal responsibility, individual rationality and the efficacy of information. Smoking, and attempts to hold cigarette companies liable for its costs, show how all three assumptions, although valid as generalities, are problematic in particular cases.</br></br>How does society hold liable a manufacturer who merchandises, by regulated advertising, a product society makes legal? With difficulty, especially when the product is cigarettes. Since 1954, 321 suits have been filed against cigarette companies, which have not been forced to pay a penny in damages.</br></br>A New Jersey court recently overturned a $400,000 award to a widower whose wife died of cancer at age 58 after 42 years of smoking. At issue was whether-prior to 1966, when government-mandated health warnings were put on cigarette packs-the manufacturer had misled the woman, knowingly or otherwise, about the risks of smoking. A related issue was apportioning to the woman her share of responsibility for her behavior.</br></br>Some anti-smoking activists want to ban cigarette advertising. Constitutional protection of commercial speech is so limited that the Supreme Court seems to have held that if an activity can be prohibited, so can the advertising of it. Congress could prohibit the sale of cigarettes, so it can prohibit advertisement of them.</br></br>But some of the $2 billion spent each year on such advertising is aimed at existing smokers and is designed to win market shares, not create new smokers. The most dramatic drop in smoking-17 percent in a decade-occurred in the United States, a nation saturated with cigarette advertising.