Suing the Tobacco and Lead Pigment Industries: Government Litigation as Public Health Prescription

Suing the Tobacco and Lead Pigment Industries: Government Litigation as Public Health Prescription

by Donald G. Gifford

"The topic, how tort law evolved over time into a system that allowed, for a moment at least, a parens patriae form of massive litigation against corporations, is exceedingly interesting and important. Gifford's treatment of this topic is highly informative, engaging, insightful, very current, and wise."
---David Owen, Carolina Distinguished Professor of Law,


"The topic, how tort law evolved over time into a system that allowed, for a moment at least, a parens patriae form of massive litigation against corporations, is exceedingly interesting and important. Gifford's treatment of this topic is highly informative, engaging, insightful, very current, and wise."
---David Owen, Carolina Distinguished Professor of Law, and Director of Tort Law Studies, University of South Carolina
In Suing the Tobacco and Lead Pigment Industries, legal scholar Donald G. Gifford recounts the transformation of tort litigation in response to the challenge posed by victims of 21st-century public health crises who seek compensation from the product manufacturers. Class action litigation promised a strategy for documenting collective harm, but an increasingly conservative judicial and political climate limited this strategy. Then, in 1995, Mississippi attorney general Mike Moore initiated a parens patriae action on behalf of the state against cigarette manufacturers. Forty-five other states soon filed public product liability actions, seeking both compensation for the funds spent on public health crises and the regulation of harmful products.
Gifford finds that courts, through their refusal to expand traditional tort claims, have resisted litigation as a solution to product-caused public health problems. Even if the government were to prevail, the remedy in such litigation is unlikely to be effective. Gifford warns, furthermore, that by shifting the powers to regulate products and to remediate public health problems from the legislature to the state attorney general, parens patriae litigation raises concerns about the appropriate allocation of powers among the branches of government.
Donald G. Gifford is the Edward M. Robertson Research Professor of Law at the University of Maryland School of Law.

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University of Michigan Press
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Government Litigation as Public Health Prescription
By Donald G. Gifford


Copyright © 2010 University of Michigan
All right reserved.

ISBN: 978-0-472-11714-7

Chapter One

The Morning after the Consumer Century

The 1893 World's Columbian Exposition, held in Chicago, was America's way of letting the world know that it had left behind its agrarian childhood and was emerging as a world leader in a new era of industrialized consumerism. Here, the Ferris wheel, Juicy Fruit gum, Shredded Wheat, Quaker Oats, and Pabst Blue Ribbon beer were introduced to the world for the first time. The stage for the exposition was known as the "White City," made all the whiter by its having been painted with more than fifty thousand pounds of pure white lead. Visited by poet Katharine Lee Bates, the "White City" inspired the line "Thine alabaster cities gleam" in the popular patriotic poem "America the Beautiful," written by Bates and later set to music.

Nearly fifty years later, at the 1939 "World of Tomorrow" World's Fair in New York, Westinghouse displayed "Elektro the Moto-Man," a seven-foot-tall robot who, like hundreds of thousands of visitors to the fair, smoked cigarettes. Nothing could have captured the spirit of the age better than the smoking technological marvel. Per capita cigarette consumption in the United States was nearly twenty-eight times as great as it had been at the time of the 1893 exposition less than a half century earlier.

White lead paint and cigarettes were among the products chosen at the dawn of the twentieth century to symbolize the bright future of America in the newly emerging technological era. By the end of the century, however, an alternate reality prevailed. Millions of Americans, unlike the robot Elektro, had died of lung cancer. Potentially millions of others faced the perils of diminished intellectual capabilities as a result of ingestion or inhalation of lead during their childhoods, just as a more complex, technological world required higher aptitudes.

The twentieth century was a time of unparalleled prosperity and progress for many Americans, but it also marked the onset, in dramatic fashion, of diseases caused by exposure to mass-produced products. Many products, particularly asbestos products, but also those ranging from prescription drugs to pesticides, were to cause serious detrimental health consequences. Yet it was cigarettes and lead pigment that would pose the most fundamental challenges to both the foundational prerequisites of the law of injury compensation in the American courts and, even more significantly, the constitutional allocation of powers among the judicial, executive, and legislative branches. In this chapter, I describe how these products offered Americans a brighter future during the first half of the century, only to be uncovered during succeeding decades as a source of death or disability.


The glorious reign of cigarettes during the early twentieth century gave few hints of the public health crisis they would later create. Perhaps no other consumer product, with the possible exception of the automobile, achieved such iconic status within American culture. General John J. ("Black Jack") Pershing, commander of the American Expeditionary Forces during the First World War, asked Americans back home to send cigarettes to his soldiers: "You asked me what we need to win this war. I answer tobacco as much as bullets." Shortly after the start of the next World War, a New York City billboard displaying the Camel Man began blowing perfect smoke rings across Times Square, and he would not kick his habit for more than two decades. Through persistent advertising, tobacco companies conveyed the message that cigarettes defined the smoker. The Marlboro Man of the late twentieth century was but the latest in a series of virile male role models featured by tobacco companies to promote their products. For women, smoking became an important symbol of gender equality and independence as early as the 1920s.

In short, America became a smoking society during the twentieth century. By 1965, 42 percent of all U.S. adults were smokers, including 52 percent of all men and 34 percent of all women. The number of cigarettes consumed in the United States per capita-that is, for every woman, man, and child-had increased from 54 in 1900 to 4,345 in 1963. By 1981, Americans annually consumed 640 billion cigarettes. Only three decades later, it seems difficult to imagine a time when nearly half the population smoked in restaurants, workplaces, and hospitals and on planes and trains.

The cigarette habit was largely a phenomenon of the twentieth-century age of mass production and mass marketing. Even before the twentieth century, tobacco, in various forms, had played a key role throughout American history. Cigarettes themselves, however, were not widely available until after the Civil War. In the early decades of the Republic, Americans typically smoked a pipe, snorted or pinched snuff, or chewed tobacco. Of course, none of these means of enjoying tobacco delivered significant amounts of smoke directly to the lungs. Meanwhile, cigarettes remained a novelty, in large part because of the labor-intensive necessity of hand rolling them.

Following the Civil War, a new variety of tobacco, white burley, grew in popularity. It was easier to harvest and readily absorbed the sweeteners and flavorings that purveyors added. In addition, a new form of technology, flue curing, produced a milder, sweeter, more consistent tobacco. These innovations made the deep inhalation of cigarette smoke into the lungs far more palatable than the inhalation of smoke produced by pipes and cigars, which typically was held only in the smoker's mouth. Once within the lungs, nicotine, the addictive ingredient in tobacco, entered the bloodstream quickly and reached the brain within seven seconds. Allan M. Brandt, professor of the history of medicine at Harvard University, has remarked, "Nicotine addiction was born in the serendipitous marriage of bright tobacco and flue-curing."

Of course, the massive public health crisis created by the smoking of cigarettes in the middle and late parts of the twentieth century required the mass production of these nicotine delivery systems. Skilled nineteenth-century hand rollers could produce only about two hundred cigarettes per hour. In 1881, however, Virginia inventor James Bonsack introduced a rolling machine that produced over two hundred cigarettes a minute. When combined with the new, tastier forms of tobacco, this latest innovation facilitated the mass consumption of the cigarette and paved the way for a major public health crisis decades later.

Once the tobacco manufacturers had invested in the costly Bonsack rolling machines, they ran the risk that the demand for cigarettes would not keep up with the greatly increased supply. Therefore, it should come as no surprise that during the early twentieth century, tobacco manufacturers virtually created the modern advertising and marketing industry as it is known today. Cigarettes were portrayed as the ultimate product of the modern age, offering instant pleasure and relief from the stresses of everyday hectic life. Advertising showing glamorous actresses and actors, as well as other members of the rich and famous, smoking cigarettes conveyed an egalitarian message: for ten or fifteen cents a pack, even the ordinary factory worker could share the pleasures of the elite. From the beginning, cigarette manufacturers' advertising targeted youth. Some manufacturers included colorful collecting cards illustrating baseball players or scantily clad actresses.

The combination of mass-produced cigarettes and their relentless promotion transformed American life and culture. By midcentury, the purchase of cigarettes represented 1.4 percent of the gross national product and 3.5 percent of spending on nondurable goods. Pulitzer Prize-winning author Richard Kluger has remarked about smoking during the Depression, "Americans were in love with smoking at a time when their collective life was low on other consolations. If the habit was bad for their health, so was hunger, and the latter seemed the more pressing peril by far."


Since ancient times, humans have been familiar with lead, in no small part because it so often is present alongside silver in the earth's crust. Lead pipes carried water in both Ur and Rome. Lead coffins and lead projectiles fired from weapons similarly date from ancient times. Many cultures used lead salves and potions for medicinal purposes. Dentists filled cavities with lead. Perhaps most important for the advancement of civilization, because alloys of lead and tin were so easy to cast and recast, they were formed into the movable type of printing presses following Gutenberg's invention.

Lead became an even more ubiquitous metal in the newly emerged industrialized consumer society of twentieth-century America. Builders used it in roofing, electrical conduits, cable coverings, tanks, and water and sewer pipes. Lead-acid batteries started automobiles. Lead solder connected the wires of the telecommunications system and early televisions and radios. Small arms ammunition containing lead killed millions in the two world wars. Lead vests protected medical and dental personnel from the effects of X-ray exposure. Lead was also an important ingredient in pesticides used pervasively during the middle decades of the twentieth century.

From the perspective of public health problems, the two most important uses of lead in the twentieth century were ones not obviously identified with lead as a metal. First, tetraethyl lead was added to gasoline to make automobile engines run more smoothly and efficiently by preventing "knocking," the faulty combustion of the fuel-air mixture in the engine cylinders. The sudden emergence of the automobile in American society during the early decades of the twentieth century created huge demand for automobile fuel. Gasoline produced from low-grade crude petroleum caused automobile engines to knock, resulting in poor performance and limited mileage. After trying a variety of gasoline additives, scientists discovered that tetraethyl lead, a lead compound, prevented knocking, thereby doubling gasoline mileage and enabling the use of larger and more powerful engines. Similarly, high-octane aviation fuel containing lead additives powered American aircraft during the Second World War. From the beginning, however, health questions surrounded the use of tetraethyl lead (TEL). In the 1920s, hundreds of workers at a TEL-production facility became ill, and several died. Less clear at the time were the possible negative health consequences that could result among members of the general public from atmospheric lead exposure caused by automobile exhaust emissions.

With the development of new, higher-performance engines during the 1950s, American automobiles consumed increasing amounts of tetraethyl lead. By 1960, the consumption of tetraethyl lead had increased 70 percent in only a decade. However, during the 1960s and 1970s, the American public became increasingly concerned about the harmful effects of air pollution. Public health scientists and lead industry officials heatedly debated whether lead particles in the atmosphere posed a health hazard.

As it turned out, leaded gasoline also poisoned the catalytic converter, a device now required in all American automobiles to reduce automobile emissions. Motivated by lawsuits filed by the Natural Resources Defense Council, the Environmental Protection Agency required the reduction of lead in gasoline. As changes in public health go, the results were sudden and dramatic. Blood lead levels dropped nearly 40 percent within a four-year period. The 1990 amendments to the Clean Air Act finally required the total elimination of leaded gasoline for cars and trucks.

The second new important source of lead exposure to emerge during the late nineteenth and early twentieth centuries was the use of lead carbonates as an ingredient in paint to decrease the time required for paint to dry, increase its durability, and help it resist moisture and retain its fresh appearance. As both the population of the United States and its economy expanded between 1910 and 1977, the American housing industry boomed. Over four thousand tons of lead pigments were applied to American homes and products during this period. Physicians recommended using lead paint to repaint surfaces to cover walls that might be contaminated by "disease germs." Following the Spanish-American War, lead industry promotional materials claimed that "Uncle Sam" had eliminated yellow fever in Havana and Santiago by introducing "cleanliness" and that "for cleanliness there is nothing like paint-the best paint-Pure White Lead." Decades later, government publications during the Depression extolled the virtues of public housing brightly painted with "white lead," as elevating the spirits of African Americans living in the rural South.

Professional painters found that surfaces previously painted with lead paint were easier to repaint, because of the natural chalking process of white lead. At the urging of the lead industry, the painters proclaimed themselves to be "white-leaders." Government regulation of paint during the first several decades of the twentieth century did not focus on the potential health effects of lead; rather, regulators debated whether paint that was not "pure white lead" should be regarded as "adulterated" and forced to include warning labels to this effect. Ignored in all of this, of course, was the fact that, as Christian Warren reports, "anyone with passing knowledge of the paint industry knew that making and using lead pigments was potentially deadly."


For the health risks caused by exposure to cigarette smoking and walls painted with lead paint to be recognized, the focus of public health itself needed to change. At the beginning of the twentieth century, infectious illnesses- such as tuberculosis, influenza, poliomyelitis, smallpox, diphtheria, and yellow fever-were far more visible than latent diseases resulting from product exposure. Infectious illnesses accounted for 56 percent of all deaths in 1900. During the next forty years, life expectancy would increase from 47.3 years to 62.9 years. By the Second World War, better public sanitation, penicillin and other antibiotics, and vaccinations brought many of these traditional health threats under control for most Americans. Poliomyelitis, a disease frequently causing death or paralysis, haunted children even during the postwar period, but a vaccine was discovered for this dreaded disease in 1954, and most American children would be vaccinated within less than a decade.

Against the background of the rosy picture created by the dramatic success of drugs in wiping out disease, the publication of Rachel Carson's Silent Spring in 1962 sounded a discordant note. Like lead paint and cigarettes, DDT (dichlorodiphenyltrichloroethane) was one of the technological marvels supposedly destined to make "the good life" possible in the twentieth century. DDT was a powerful pesticide used, among other things, to destroy insects that carried viruses and bacteria that caused a variety of serious illnesses. However, Carson, a marine biologist, wrote a text that envisioned a world in which, as a result of the toxic effects of DDT exposure, birds no longer sang, frogs no longer chirped, and humans died as a result of exposure to pesticides. One of the chapters, entitled "One in Every Four," analyzed likely cancer rates among humans as a result of exposure to carcinogenic substances. Silent Spring has been identified repeatedly as one of the most important books of the twentieth century and is often credited with inspiring the environmental movement.

The roots of Silent Spring lay deep within the fields of occupational health and industrial hygiene. While the remainder of the medical and public health communities had focused largely on infectious illness during the preceding decades, occupational health specialists increasingly had identified and cataloged the harms resulting from exposure to a variety of substances during the manufacturing processes, including, notably for the purposes of the present discussion, lead. Not much attention had been paid to occupational illness at the beginning of the twentieth century. The most influential medical textbook of the time, William Osler's The Principles and Practices of Medicine, published in 1915, covered illnesses resulting from occupational exposure in only 7 of 1,225 pages. Firms in dangerous industries, such as mining and lumber, employed "company" physicians who predictably took the view that health and safety at the workplace were the responsibilities of the individual worker.


Excerpted from SUING THE TOBACCO AND LEAD PIGMENT INDUSTRIES by Donald G. Gifford Copyright © 2010 by University of Michigan . Excerpted by permission.
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