When political operators win big with a clever legal strategy, you can be sure it’ll be used again. One strategy that paid off handsomely for trial lawyers and their activist allies was the coordinated attack on tobacco companies in the 1990s. Because of the obvious health risks, tobacco made for an easy target. The success of the anti-tobacco crusaders, however, has spawned a host of imitators who have tried to transfer the antipathy many people feel toward tobacco companies on to the makers of everything from fast food to fossil fuels. We may not have shed a tear for the big cigarette sellers, but the cycle of anti-corporate activism has long since moved on to more mainstream products. You might be surprised where it leads.
The result of the original legal campaign against the tobacco companies was the 1998 “Master Settlement Agreement” between the three largest cigarette makers and 46 of the 50 state attorneys general. It was sold as a way to force irresponsible corporations to pay for the costs incurred by state governments while treating smoking-related illnesses. In classic political fashion, though, the details were more complicated than that – while state governments were guaranteed billions of dollars in future revenue, the tobacco sector was given legal protections that insulated them from competition. That came in handy when they inevitably raised their prices in order to pay off the cost of the settlement.
The tobacco agreement was a masterpiece of high stakes deal-making. Politicians got credit for going after the corporate bad guys, activist groups scored big on public relations and fundraising, trial attorneys collected millions of dollars in fees, and the industry itself got protection from future competition – although that last element was generally omitted from the triumphant press conferences hosted by officials. The real losers were American consumers, whose share of the deal consisted of fewer choices and higher prices. This arrangement has become the template for activist campaigns against whatever products incur the wrath of self-appointed watchdogs, nanny-state activists and assorted anti-business malcontents.
A product doesn’t have to have the health risks associated with tobacco to end up being demonized and become the subject of intrusive government attention. Virtually anything that people buy and sell is a potential target, and once the attack begins, questions of individual choice and personal responsibility – and even rapidly evolving medical evidence – are deemed irrelevant to the debate.
News stories over the past few years alone have offered a dizzying proliferation of products, services and institutions apparently in waiting to become “the next tobacco.” According to many, sugar is the next tobacco, for health problems ranging from hyperactivity disorder to diabetes. If the nation’s sweet tooth is insufficiently worrying, however, dietary fat could be the next tobacco, or possibly salt. You could roll them all together, of course, and say that the fast food industry is the new tobacco, or broaden it even more and decide that “Big Food” – that is, any company that produces food at all – is the real culprit. You can wash those campaigns down with the knowledge that alcohol is apparently also the next tobacco, and chase that realization with news that both soda and bottled water are also…well, you get the idea.
Things we eat and drink might seem to have a conceptual connection to smoking cigarettes, however tenuous, but the strained analogies don’t end there. When it comes to attempting a replay of past courtroom successes, critics have even suggested that the NFL – aka “Big Football” – might be the next tobacco. If you’re more of a fan of the college game, though, don’t feel left out. The NCAA itself has also been nominated as the next tobacco for its role in allegedly minimizing health risks to college athletes.
Which brings us to the latest iteration of this cycle, in which the usual suspects, including state officials and activist groups, are lining up to make oil and gas the next tobacco. New York Attorney General Eric Schneiderman, along with his colleagues in several other states and the U.S. Virgin Islands, has decided that ExxonMobil needs the Joe Camel treatment and must be hauled into court regarding its public affairs efforts related to climate change.
The organization that I founded and led for many years, the Competitive Enterprise Institute, has now also become a subject of this investigation. We will, of course, vigorously defend ourselves in the courts, but no one should be confused about the real targets. This case is not about CEI or even, most fundamentally, about ExxonMobil. It’s about a group of government officials trying to use law enforcement means to pursue political ends in what columnist George Will recently called an example of “gangster government.”
The effort to shut down any company or industry that runs afoul of the elite consensus is a dangerous trend in American political life. The chattering class will always have another target to blame for allegedly making Americans unhappy or unhealthy or insufficiently panicked about the effects of a changing climate. It’s time we all put aside our differences – whether or not we watch football, drink soda or eat salty snacks – and stand up to this mentality. The “next tobacco” might just be closer than you think.
Originally posted to Forbes.