THE COUNSELOR=S CORNER

A Federal Appeals Court with jurisdiction over California has a difficult situation to deal with. The question before it is whether or not tobacco Companies should be forced to pay for anti-tobacco advertising. This issue arises out the passage of Proposition 99 which the voters of this state passed in 1998. The Proposition taxed cigarette companies twenty-five cents for each pack of cigarettes sold. The twenty-five cents is designated to be used for research into tobacco related diseases, tobacco control, and other health care issues. This has lead to a good bit of this money being used in an anti-tobacco media campaign. Radio, television, newspapers, and billboards all lament the evils of tobacco. Two hundred million dollars has been spent by the Department of Health Services so far. Statistically, the anti-tobacco campaign seems to be working. In 1998 the percentage of adults in California who smoke was 22.8%. It is now 16.6%.

The position of the tobacco companies is that this twenty-five cent per pack tax which is being used to fund the anti-tobacco campaign in effect forces the companies to help put their own products out of business.

This issue is now before a Federal Appeals Court and it appears to be a case of first impression. When listening to the arguments made by the attorneys, one of the justices wondered about the fact that it appears that these companies are being asked to fund their own execution. The attorney for the tobacco industry concedes that if the anti-tobacco ads were funded by general taxes rather than these specialized tobacco taxes there would not be an issue. Clearly the government has the right to spend its money from its general account in any way it chooses. The issue, according to Joseph Escher, the tobacco company=s attorney is that the company should not be required to pay for speech that Anot only is contrary to their own interests, but actually vilifies them.@

Attorney General Bill Lockyer whose office argued the case for the government acknowledges the fact that the purpose of the ad campaign is to chip away at the tobacco companies and perhaps even put them out of business. Lockyer, somewhat foolishly in my opinion, says that the democratic process provides checks and balances on the use of these taxes to fund this message claiming that if the voters don=t like what the elected officials are doing with this money they can vote the officials out of office. This really is silly. When people vote for an elected official, they rarely base their vote on one issue, especially one that may not necessarily dramatically affect them. To think that people would vote their state representatives in or out based on whether they think the government is appropriately using this twenty-five cent per pack tax to undue the tobacco industry is totally unrealistic. The tobacco industry attorneys claim that this is a unique situation in that never before have a separate and distinct group of taxpayers been taxed to pay for advertisements which run quite contrary to their own interests.

This case initially came before United States District Court Judge Lawrence Karlton who decided that the government was acting appropriately. I don=t think Judge Karlton=s ruling is going to stand and I don=t think it should. If the legislature and other branches of the government in the State of California want to do everything they can put the tobacco companies out of business, then let them, but they shouldn=t do it with a special tax on tobacco products. You don=t see this happening to the liquor industry right now and I don=t think it should. It is one thing to wage a campaign and attempt to achieve a result; it is something quite different to force a company or group of companies to finance their own demise. I believe that the tobacco companies first amendment rights have been violated and that they should not be compelled to pay for their own destruction. Please don=t take this as an endorsement of tobacco or anything else. I am allergic to cigarette smoke and do not care for it at all; however; to me it is important that legislatures do what is right, not necessarily what is convenient to them or for that matter what would be convenient to me. If our government wants to continue the anti-tobacco campaign, so be it, but let them pay for it from funds from our general account as oppose to a specific cigarette tax.