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Ending the Tobacco Problem: A Blueprint for the Nation
continued to develop the addiction argument. Some suits were successful, although not all rulings were upheld on appeal. Other pending cases accuse tobacco companies of fraud over use of words like “light” and “low-tar” to imply that cigarettes with these characteristics are less hazardous to a person’s health. Potentially the most significant case of this kind, Schwab v. Philip Morris, was certified as a class action in a federal district court in New York in 2006. The “third wave” of tobacco litigation, beginning in 1994, has been summarized by Douglas et al. (2006) and Janofsky (2005). In what proved to be a pivotal legal milestone in the history of tobacco control, in 1994 Mississippi Attorney General Michael Moore filed a suit against the tobacco companies to recover the state’s Medicaid expenditures on residents with tobacco-related illnesses. Because the state was the injured party under Moore’s legal theory, he bypassed the industry’s customary defense in suits filed by smokers that the smokers were responsible for their own injuries (Fisher 2001). Soon every state filed similar suits.
Moore and several other state attorneys general negotiated a so-called global settlement with the major tobacco companies in 1997. The proposed agreement would have bound the industry to various tobacco control efforts, including restrictions on advertising and promotion, and would have accepted FDA jurisdiction over cigarettes. The agreement would also have settled all pending state suits and would have immunized the companies from all class action litigation. According to Stanford law professor (and committee member) Robert Rabin: “Beyond doubt, [the agreement] was a testament to the awesome threat posed by the [states’] litigation strategy” (Rabin 2001b).
Congressional approval was required for the agreement to be binding. Legislation sponsored by Senator John McCain to implement the settlement and put in place other measures favored by tobacco control advocates became a target for aggressive lobbying by both those for and those against the bill. The legislation divided the tobacco control advocates, with some leaders—including David Kessler and former Surgeon General C. Everett Koop—opposing it on the ground that it was too favorable to the tobacco companies. The proposed legislation was caught up in a filibuster and never received a floor vote (Pertschuk 2001).
However, a short time later—on November 23, 1998—the attorneys general of 46 states, the District of Columbia (and American territories such as Guam and Puerto Rico) signed the Master Settlement Agreement (MSA) with the major tobacco companies (National Association of Attorneys General 1998).
The MSA required companies to pay an estimated $206 billion to the 46 states between 2000 and 2025. (Four states—Florida, Minnesota, Mississippi, and Texas—had previously reached a settlement that obligated the