Tobacco On Trial

May 4, 2005, 8:39 PM

They say in the boxing world, “styles make a fight,” the point being the more disparate the styles, the more interesting the fight, as each boxer adjusts his own unique weapons to deal with the opponent’s distinctly different weapons.

The truism came to mind in the matchup Tuesday between U.S. Surgeon General Richard Carmona and B&W/RJR’s David Bernick. Here you had the classic, tough, straight-ahead military man, of average size but densely-packed, with nut-brown skin, dark, deep-set eyes, and a chest-full of medals. His opponent: the wily and mentally serpentine Mr. Bernick, whose only decoration was his luxuriant, bright orange tie.

Each man was certainly battle-hardened, though in far different theaters of war.

But the Surgeon General was in Mr. Bernick’s theater now, the courtroom–not an area in which we expect a Surgeon General to have great experience. Would he be taken apart as Mr. Bernick had taken apart Dr. Kessler? Could he withstand the subtle but overwhelming Bernick onslaught? Was he really prepared for this?

It turned out the Surgeon General had his own strengths to draw upon, especially once he saw the nature of the battle. In addition, the rules of engagement were set by Judge Kessler early on. In overruling an objection by Ms. Eubanks (”We did not put the Surgeon General on the stand to address advertising restrictions”), Judge Kessler said that because of his credentials and most of all his important position within the government, the Surgeon General’s testimony “comes with a great deal of credibility. Because of that, the Defendants must be given an opportunity to cross examine him in the same fashion . . . they would cross examine another individual.” But she made it clear that, “none of these questions (from Mr. Bernick) will be used in any way to harass the Surgeon General or make him uncomfortable. . . If I sense any improper tone or cross … I will cut him off.”

But the Surgeon General abided by the rules of engagement also; he smiled often, easily and naturally, and always answered Mr. Bernick’s questions with politeness. The major overt sign of aggression, besides a few pointed answers, and a judicious use of the microphone to emphasize the importance of his subject, came near the middle of the cross, when he began using “sir” in his answers to Mr. Bernick. (I felt like saying, “Uh oh, Mr. Bernick, when a military man starts calling you “sir,” watch out!” The military use of “Sir” can be quite nuanced; in this case, I believe it meant the Surgeon General now recognized the nature of the enemy, and was gearing up for battle.) But otherwise Surgeon General maintained his gracious unflappability even when, at the end of the cross, the subject turned to the death of his own parents.

Comprehending “Comprehensive”

The opening skirmish dealt with whether any of the myriad smoking and health problems addressed in the 2004 Surgeon General report were specifically tied to any of the Defendants’ behavior. Of course, that was not the purpose of the report, which bore the title, “The Health Consequences of Smoking.”

Where the Surgeon General found himself under attack was in regards to DOJ remedies. The 2004 report has an entire chapter (8) titled, “A Vision for the Future,” with subheadings like, “The Need for a Sustained Effort,” “The Need for a Comprehensive Approach” and “Tobacco Control in the New Millennium.” Mr. Bernick pulled these two sentences out of the chapter:

“A comprehensive approach —one that optimizes synergy from a mix of educational, clinical, regulatory, economic, and social strategies—has emerged as the guiding principle for effective efforts to reduce tobacco use.”

“[A] comprehensive national effort should involve a broad mix of strategies.”

to indicate specific DOJ-remedies-type recommendations should have been made in the report, but weren’t.

In addition, he criticized the Surgeon General for not “signing off on” Dr. Fiore’s National Cessation Program–the very one proposed as a remedy in this case, Mr. Bernick indicated– when it was recommended to the Surgeon General by a subcommittee of the Surgeon General-chaired Interagency Committee on Smoking and Health.

Mr. Bernick indicated that the Surgeon General’s failure to recommend any of the proposed remedies — and most especially Dr. Fiore’s National Cessation Program–was because none had “a foundation of conclusive scientific knowledge” as to their efficacy on a national basis.

The Surgeon General was quite impressive. Well-educated and well-spoken, sharp, canny,
He didn’t let Mr. Bernick get away with much, and seemed to pick up courtroom expertise very quickly. I was shocked to see that linguistically and intellectually, he’s every bit Mr. Bernick’s match.

The Surgeon General said the report was meant to be a tool for others–policy makers, legislators, public health organizations and officials–to use in deciding what to do to reduce the health consequences of tobacco use. The Surgeon General took the opportunity to emphasize the dire straits the nation found itself in because of tobacco use, and at times his voice go purposefully loud–he didn’t yell, but cannily slipped closer to the mike and stayed there to make his point loudly–almost accusatorily–to Mr. Bernick, in the most forceful way possible.

The Surgeon General emphasized the need for a thousand-points-of-light approach (my phrase), the need for any National Tobacco Control Program to be tailored to address each of America’s myriad sub-populations. As a 2nd-generation Puerto Rican growing up in a tenement in Harlem, you could see that his concerns for disadvantaged ethnic communities–he referred to “a Northwest Reservation” as being far different from urban areas–were genuine and heartfelt, and undoubtedly in sync with Judge Kessler’s own sensibilities.

But Mr. Bernick will not rattle under such fire, and smoothly continued his sly assault at every turn, polite but insistent.

“7-7-7″

Mr. Bernick emphasized that one concern about a comprehensive tobacco control program is that the states and the government already have enough money to fund such a program “many times over” from MSA and excise taxes, but that none of the states, with few exceptions, meet the minimum levels of tobacco control funding laid out by the CDC.

Later in the day, Mr. Bernick told reporters that raising the $5 Billion a year for Dr. Fiore’s National Cessation Program would be self-defeating as the major companies would just pass the costs on to smokers (taking care, of course, not to over-widen the price gap between the Defendants’ brands and the legion of Johnny-come-latelys). He said governments already have plenty of money to fund such a program–”7-7-7,” he said, “$7 billion in excise tax, $7 billion in MSA funds, $7 billion in state taxes.”

Several times during his testimony, the Surgeon General made clear that he was speaking not personally, but as the Surgeon General of the US. So at last Mr. Bernick, referring to an article about the smoking-related deaths of his parents, asked the Surgeon General, “Does your personal history give rise to any kind of motive in regards to smoking?”

There was no visible sign of reaction from the Surgeon General, no apparent anger whatsoever at having his dead family members dragged out to prop up the idea of an emotional bias in his medical opinions and in his efforts to relieve the nation of some of the burden of tobacco use.

The Surgeon General said that as a doctor, and as a trauma surgeon, seeing the havoc wrought on the bodies and abilities to heal of smokers, has greatly shaped his feelings about society, including smoking. And as a son who saw his parents die young of tobacco-related disease?

“Our past shapes all of us,” he said. And his past “puts a real face on the hazards of smoking.” He referred to the present-day respiratory problems of himself, his brothers and his sister, which he indicated came from parental smoking. (I had detected at times his almost inaudible wheeze, and had thought it meant he used to smoke. The Surgeon General apparently feels his respiratory troubles are due to early exposure to household smoking, by parents who simply didn’t have the knowledge they needed to protect their children.)

“I am here,” he said emphatically, “to ensure the American public gets the information it needs to stop smoking.”

The Health Consequences Of Smoking: A Report of the Surgeon General

This entry was posted on Wednesday, May 4th, 2005 at 7:19 pm and is filed under Notes. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.