Why Did We Need a School Playground Cigarette Law?

Inside the tobacco corporations, they referred to children as “replacement smokers.” Corporate marketing plans and sales documents analyzed the need to replace smokers who died; children younger than eighteen years old were prime targets. The cigarette corporations had studies showing that if kids did not start smoking by the time they were eighteen, they probably never would become regular smokers. For decades, the cigarette corporations secretly researched nicotine, smoking, and the habits of teenagers. They spent millions of dollars on teenager tracking, marketing, and manipulation. Internally, the cigarette companies called addicting teens to cigarettes a “key corporate priority.”

For decades, cigarette corporations tried to dispute allegations like these. They can do so no more after the Court of Appeals affirmed the 1,000-plus-page decision of Judge Kessler, the federal judge who oversaw the 2006-2007 racketeering trial of the cigarette corporations. Judge Kessler concluded: “The evidence is clear and convincing—and beyond any reasonable doubt—that Defendants have marketed to young people twenty-one and under while consistently, publicly, and falsely denying they do so.”

Judge Kessler’s judicious reference to “young people under twenty-one” actually gives the cigarette corporations more credit than they deserve. Inside the companies, the term “younger adult” was a euphemism. Younger adult and YAS (meaning “younger adult smoker”) are corporate-speak for child or teenager. Corporate marketing studies of YAS included children as young as ten years old, and the companies studied the percentage of “twelve- to seventeen-year-olds” who “smoked at least a pack a week.” They called teens aged fifteen to nineteen the “new-smoker age group,” and they noted with encouragement that “the thirteen-year-old age group ‘shows the most dramatic increase in proportion of smokers.’” The cigarette corporations knew that “YAS are the only source of replacement smokers—[fewer] than one-third of smokers start after age 18,” and the companies spent hundreds of millions of dollars to increase sales to children between the ages of twelve and seventeen.

According to Judge Kessler: “Defendants realize that they need to get people smoking their brands as young as possible in order to secure them as lifelong loyal smokers.” She quoted dozens of internal corporate documents, including an “opportunity analysis” weighing how to exploit teen insecurities: “Socially insecure, they gain reinforcement by smoking the brands their friends are smoking, just like they copy their friends’ dress, hairstyle, and other conspicuous things. To smoke a brand no one has heard of—which all new brand names are—brings one the risk of ostracism. It’s simply not the ‘in’ thing to do.”

What makes people go to work each day, year after year, trying to figure out how to hook children on smoking? A cigarette executive provides the answer in a long-concealed internal document: the possibility of billions of dollars in corporate profit. “If we hold these YAS for the market average of 7 years,” he wrote, “they would be worth over $2.1 billion in aggregate incremental profit. I certainly agree with you that this payout should be worth a decent sized investment.” By the 1990s, the “decent-sized investment” targeting kids for cigarette sales had succeeded in ensuring that 72 percent of six-year-olds recognized the cartoon symbol of Camel cigarettes.

This is why several states, including Mississippi, Washington, and Massachusetts, began law-enforcement actions against the cigarette conspiracy. These cases began to uncover the truth about the conduct of the cigarette corporations, and by 1998, Massachusetts banned outdoor cigarette advertisements within 1,000 feet of a playground, elementary school, or secondary school. Massachusetts attorney general Scott Harshbarger said the law was needed “to stop Big Tobacco from recruiting new customers among the children of Massachusetts.”

In response, the tobacco corporations did not apologize and change; they went on offense. They cried “Free speech!” and sued to block the law. They turned to the Powell-Chamber corporate rights theory that by 2000 had become a very potent tool for corporations to evade responsibility, accountability, and public oversight. The corporate legal foundations imagined by Lewis Powell and the Chamber of Commerce in the 1970s by now were fully funded and rushed into the fray. They filed briefs alongside the tobacco companies, demanding that the Supreme Court protect the “vital role in American society” of corporations. They quoted Henry David Thoreau and weirdly complained that during World War II, “Commercial speech became a casualty as surely as Veronica Lake’s ‘peekaboo’ hairstyle.”

The corporate lawyers repeated the now familiar refrain that corporations are the same as people. They said that restricting the cigarette corporations’ advertising around playgrounds and school yards violates corporate speech rights under the First Amendment. The Supreme Court, by this time fully shaped by the legacy of Lewis Powell, agreed and struck down the Massachusetts law. The law keeping Joe Camel and the cigarette ads away from schools and playgrounds was dead.

Now, a decade later, the cigarette corporations and those who lead them are unembarrassed by the federal verdict that they engaged in an illegal racketeering conspiracy. They are using Citizens United to go on offense. The usual corporate activists, including the Chamber of Commerce Litigation Center (which has described itself as Powell’s “brainchild”) has joined the cigarette industry in the courts to block implementation of the 2009 Family Smoking Prevention and Tobacco Control Act, which requires updated warning labels. In August 2012, the Court of Appeals in Washington struck down the new warning labels. Despite a strong dissent, the majority ruled that the required warning labels violated corporate First Amendment rights and a “broader concept of individual freedom of mind” for corporations and people alike.