Now the Justice Department, armed with documents from the companies’ own research on nicotine, is set to challenge the industry. Last week federal prosecutors in New York opened a criminal investigation into possible securities-fraud charges against Philip Morris. Reportedly, a second grand-jury probe in Washington is expected to investigate perjury charges against at least one executive. Contacted by NEWSWEEK for comment, Philip Morris acknowledged that company records have been subpoenaed for the New York probe; the other companies either declined to answer questions or said they had no knowledge of an investigation. NEWSWEEK has learned that President Clinton, searching for a campaign hot button, has tentatively decided to push the FDA to regulate cigarettes, a move the companies have fought bitterly. An announcement may come as early as this week.
These are just the latest blows to hit the tobacco industry–and these moves suggest that the controversies surrounding nicotine may be its toughest battle yet. In the past, opponents attacked cigarettes for causing cancer and heart disease–as many as 400,000 deaths a year in the United States. But for four decades, and through more than 400 lawsuits, nobody ever collected a penny on these grounds. Either plaintiffs ran out of money or juries thought that smokers chose to smoke and were able to quit. Then early last year ABC’s “Day One” alleged that cigarette companies had deliberately manipulated nicotine in the manufacturing process. The companies denied this, and Philip Morris brought a libel suit, still pending, against ABC. At the same time, FDA Commissioner David Kessler announced that the agency would consider trying to regulate cigarettes as a drug. Leaked documents from the research files of Brown & Williamson, the nation’s third largest tobacco company, provided ammunition for congressional pressure and a handful of large class-action suits-and now, criminal investigations.
Last week still more damaging papers surfaced, calling into question what the tobacco companies knew about nicotine and when. One Philip Morris document, entered into the Congressional Record by Rep. Henry Waxman of California, advised the board as early as 1969 that the craving created by tobacco was so powerful that cigarettes “will even pre-empt food in times of scarcity on the smoker’s priority list.” It continued that “the ultimate explanation for the perpetuated cigarette habit resides in the pharmacological effect of smoke upon the body of the smoker.” A document from R.J. Reynolds, obtained by The New York Times, described nicotine as “a potent drug with a variety of physiological effects.”
Also unsettling were accounts of company tests on humans. One Philip Morris study, entitled “The hyperactive child as prospective smoker,” tracked more than 6,000 hyperactive students-starting with third graders–to see if they were more prone to smoke. Noting that such kids were often treated with stimulants, the researchers questioned “whether such children may not eventually become cigarette smokers in their teenage years as they discover the advantage of self-stimulation via nicotine.” The report added, “Needless to say, we will not propose giving cigarettes to children.”
Other papers described an experiment in which Philip Morris researchers administered electric shocks to college students–with their consent–to see if “people smoke more under stress.” The idea was to see if they puffed more when advised they were about to receive an electric jolt, because of the calming properties of nicotine. Wrote one researcher: “The shock will be painful, but tolerable.” Not tolerable enough: the experiment was later scrapped because “fear of shock is scaring away some of our more valuable subjects.”
Even with these documents, legal experts say the grand-jury probes may not amount to much. Prosecutors will have to prove that the tobacco executives knew that nicotine was addictive, and that they deliberately withheld the information or lied about it. The New York investigation reportedly also involves a novel reading of securities law: that Philip Morris executives knew of a potential liability and withheld the information to protect stock prices. Philip Morris issued a statement denying any wrongdoing and declined to comment further.
In Washington, the question of how zealously to fight tobacco is political, not legal. The cigarette companies donate most heavily to the Republican Party. But the industry’s sway extends beyond the GOP. In meetings at the White House last week, Democratic Reps. Charlie Rose of North Carolina and Ron Wyden of Oregon urged top Clinton aides Leon Panetta and Harold Ickes not to let the FDA regulate tobacco. Instead, they pushed for mild voluntary restraints. “If you all go forward with this,” Rose told Panetta and Ickes, “you can write off what’s left of the House for the next election.” In truth, the beleaguered FDA intends only to ban cigarette sales from vending machines, to limit access to minors; these account for a minuscule share of overall sales. Late last week the negotiations for voluntary measures fell apart. Clinton was leaning toward FDA regulation.
Though this might hurt Democratic candidates for the House, it could be a boon for Clinton. Democratic consultants have argued that a hard line against an unpopular industry may be even more beneficial than his recent attacks on the NRA. In the end, tobacco executives may or may not be indicted. But their opponents have picked on nicotine as the industry’s Achilles’ heel. And in civil courts, in Washington–and now potentially in criminal courts-they are turning up the heat.
