06/22/2010 01:55 pm ET | Updated May 25, 2011

The Tobacco Leopard

We are both veterans of the tobacco wars and so are not surprised at the industry's recent attempt to block New York City Mayor Michael Bloomberg's effort to remind citizens of the grim dangers of smoking by requiring stores that sell tobacco products to post graphic posters of the consequences of lighting up. To us this is the same old, same old tobacco industry tactic of frivolous litigation to obstruct any program that focuses attention on the killing and crippling consequences of using tobacco products as directed.

The city has enacted a requirement that stores selling cigarettes--some 11,500 establishments--show at point of sale where the tobacco products are displayed one of three Health Department signs. One displays a smoker's damaged lung; another, a decayed tooth; and the third, a stroke-damaged brain, respectively captioned "Smoking Causes Lung Cancer," "Tooth Decay" or "Stroke." Each urges individuals to "Quit smoking today" and take advantage of New York City's quit programs.

Philip Morris, R. J. Reynolds Tobacco and Lorillard--the big three tobacco merchants--have gone to their old playbook, the one they use to battle any effective anti-smoking effort. First, create (or support) as allies individual local stores or restaurants and an association to "represent" them. Second hire the biggest legal guns money can buy. Third, file a lawsuit that sprays charges and legal attacks like buckshot hoping one or another will hit their target.

When the industry resorts to one or another of those ploys, you know the program they are attacking is effective.

In 2003, R. J. Reynolds and Lorillard sued the California Department of Health Services to kill the state's effective tobacco control advertisements. Among the two companies' claims was that California violated their First Amendment rights by imposing a surtax on cigarettes and using the proceeds for the state's anti-smoking media campaign. The outcome: the federal district court rejected this spurious claim (and others) and the Ninth Circuit Court of Appeals affirmed the trial court's rulings.

Beginning in 2002, Lorillard engaged in a legal battle with Legacy, the foundation set up by the tobacco master settlement agreement to discourage youth smoking, to kill its extraordinarily effective youth smoking prevention truth® campaign. The litigation dragged on for almost five years, distracting Legacy's executives and draining the foundation's resources. The outcome: a unanimous Supreme Court of Delaware decision upholding the Legacy program and rejecting the industry's claims that Legacy's hard hitting ads vilified tobacco executives in violation of the settlement agreement.

The lawsuit filed against New York City echoes the spurious claims made by the tobacco companies in the past. Among the complaint's charges, the industry claims that requiring a store seller to put up such a graphic sign violates the First Amendment rights of a seller or store owner who doesn't agree with it. That's like saying that the government requirement that drug companies warn patients of adverse side effects violates the First Amendment rights of pharmaceutical companies who don't agree with the warning. Other claims splattered through the complaint are that the law violates plaintiffs' civil rights and that federal law prohibits the city from imposing this requirement.

This effort to block New York City's potent public health initiative is reminiscent of big tobacco's assertions that nicotine was not addictive and its denial of smoking's adverse health consequences, while concealing the mounds of data it had to the contrary. That tactic led the federal district court in Washington to find the big three tobacco companies guilty of civil racketeering and defrauding the public, a finding which was upheld on appeal just last year.

New York City's posters have been on display for the better part of a year. From our experience, it doesn't take tobacco companies that long to file a lawsuit to kill something they oppose. What going to court now to kill this program reveals is that these posters are achieving their intended objective of discouraging smoking. Such action also shows the tobacco industry's concern that other cities and states are likely to follow Mayor Bloomberg's example.

New York City has become the leader and trend setter in discouraging smoking through its comprehensive program of imposing higher taxes on cigarettes to make them more expensive, guaranteeing New Yorkers smoke free space, and offering its citizens free medical support to help them quit smoking. Massachusetts is already preparing a warning sign program modeled on New York's. Other states and cities are indeed likely to follow, as several already have with respect to increasing taxes and mandating smoke free space in restaurants and other public places.

From 1964, when the first Surgeon General's report alerted the nation to the dangers of smoking, through our experiences in the Carter and George H.W. Bush administrations, right up to the present, it appears that the tobacco industry, like the jungle's leopard, cannot change its spots.

Joseph A. Califano, Jr., Founder and Chair of The National Center on Addiction and Substance Abuse at Columbia University, was Secretary of Health, Education, and Welfare in the Carter Administration. Dr. Louis W. Sullivan, President Emeritus of the Morehouse School of Medicine, was Secretary of Health and Human Services in the George H.W. Bush Administration.