Taming Tobacco
In 1950, Hill and Doll published a landmark paper in the British Medical Journal. They had interviewed hundreds of lung cancer patients and healthy controls in London hospitals and found that people with lung cancer smoked cigarettes at dramatically higher rates than people without it. The conclusion was not ambiguous; the tobacco industry’s response was a masterclass in how to make clear things seem murky.
Within four years, American cigarette manufacturers had formed the Tobacco Industry Research Committee, later renamed the Council for Tobacco Research. They hired scientists, funded studies, placed ad in newspapers, and issued press releases arguing that the evidence was inconclusive and that more research was needed. Iinternal documents that became public proved that they knew these were lies, and that tobacco company executives understood the health risks long before the public did. Their goal wasn’t to disprove the science: it was to create enough uncertainty that politicians felt they could not act and smokers felt they could not be sure.
This strategy was later used by leaded gasoline producers against evidence linking lead to cognitive damage in children, and by fossil fuel companies against climate change. It follows a template:
- Fund scientists willing to generate alternative hypotheses, however implausible.
- Insist that correlation is not causation.
- Describe any call for regulation as an attack on personal freedom or scientific integrity.
- Create front organizations with neutral-sounding names that can advocate on your behalf without obvious commercial interest.
- Delay, delay, delay—because delay is profit.
If this sounds familiar, it’s because tech companies that argue they are “just a platform” and not responsible for the content they amplify are doing exactly the same things.
Forty Years to an Agreement
The United States Surgeon General issued his landmark report in 1964, fourteen years after Doll and Hill’s paper. The report stated clearly that smoking caused lung cancer, and recommended action. The tobacco industry spent the next thirty-four years fighting a rear-guard action. What eventually forced a reckoning was a combination of factors: litigation by individual plaintiffs and then by state governments, pressure from public health advocates, investigative journalism, congressional hearings, and the slow accumulation of economic costs borne by state Medicaid programs that finally gave states both the motivation and the legal theory to sue.
The key legal move was a shift in how states argued their cases. Rather than proving that smoking had harmed specific individuals, which the industry could defeat by arguing about individual risk tolerance, states sued to recover the cost of treating sick smokers. Mississippi was first in 1994, and by 1998 forty-six states had reached the Master Settlement Agreement with the four largest cigarette manufacturers. The companies agreed to pay $206 billion over twenty-five years, restrict marketing to minors, and disband the organizations they had used to manufacture doubt.
It was a victory, but it took 40 years to go from a clear scientific finding to a partial legal resolution, and even then the industry survived and moved into new markets. Other countries responded slowly, but they did respond. For example, consider what happened in Australia. The Labor government introduced legislation requiring plain packaging for all tobacco products: no logos, no distinctive colors, Just the brand name in a standardized font on a drab olive-brown background, surrounded by large graphic health warnings.
The Tobacco Plain Packaging Act passed in 2011 and took effect in December 2012. The industry’s response was immediate and coordinated. British American Tobacco, Philip Morris, and Imperial Tobacco challenged the law in Australia’s High Court, arguing it amounted to an unlawful acquisition of their intellectual property. The High Court rejected this unanimously in August 2012. Then Philip Morris International filed a challenge under an obscure investor protection treaty between Hong Kong and Australia, arguing that plain packaging violated the treaty’s provisions on the fair treatment of foreign investors. That proceeding dragged on for years before an arbitral tribunal dismissed it in 2015 on the grounds that Philip Morris had restructured its Australian operations specifically to gain access to the treaty—a move so transparently opportunistic that even the arbitrators were not impressed.
The ISDS Gambit
Philip Morris’s case against Australia was brought under a mechanism called investor-state dispute settlement, or ISDS. ISDS clauses appear in many bilateral and multilateral trade agreements and allow foreign investors to sue governments in private arbitration tribunals when government actions damage their investments. The intent was to protect foreign businesses from arbitrary expropriation by governments in countries with weak rule of law. In practice, the effect has been to give corporations a veto mechanism over democratic regulation.
Philip Morris was not a Hong Kong company. It restructured its corporate holdings in 2010 specifically to route its Australian business through a Hong Kong subsidiary. The case is now a standard example in discussions of how ISDS can be weaponized. Several countries have since renegotiated or withdrawn from treaties with broad ISDS provisions. The European Union’s reformed trade agreements have moved toward investment courts with public judges rather than private arbitration panels. None of this happened quickly, and none of it would have happened without the Australian experience demonstrating the abuse clearly enough that reformers had a concrete case to point to.
What eventually made the difference with tobacco was not better science but organized pressure operating through multiple channels simultaneously. Litigation created financial costs large enough to change corporate behavior. Public health campaigns shifted popular attitudes, which in turn changed what politicians felt they could support. Investigative journalism revealed that the industry had known what it denied knowing, which destroyed the credibility of its scientific spokespeople. International organizations like the World Health Organization created a Framework Convention on Tobacco Control that gave national health ministries political cover and legal tools they had previously lacked.
None of these were sufficient on their own: litigation alone produced settlements that left the industry intact, public health campaigns alone had failed for decades against the industry’s advertising budgets, and regulation alone was blocked by industry lobbying. It was the combination that worked, albeit slowly.
The question for anyone wanting to rein in tech companies is therefore how long it takes to build a combination of litigation, regulation, and public pressure strong enough to impose costs on an industry that is wealthy enough and politically connected enough to resist? The tobacco case suggests the answer is measured in decades, and that even then you get a settlement rather than a solution.
see the whole series · email me
- Brandt2007
- Allan M. Brandt: The Cigarette Century: The Rise, Fall, and Deadly Persistence of the Product That Defined America. Basic Books, 2007, 9780465070480.
- Oreskes2010
- Naomi Oreskes and Erik M. Conway: Merchants of Doubt: How a Handful of Scientists Obscured the Truth on Issues from Tobacco Smoke to Climate Change. Bloomsbury, 2010, 9781608193943.