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Tuesday, June 24, 1997 - Page updated at 12:00 AM

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Michelle Malkin

The Bizarre Tobacco Deal Is A Threat To Our Liberty

Times Editorial Columnist

An astonishing achievement A giant step forward A historic victory A triumph . . .

THE latest movie reviews for "Speed 2"? Nope. Try the latest editorial gush following last week's announcement of a complex pact between cigarette makers and anti-smoking forces. Few have laid eyes on the actual settlement. A summary of the terms of agreement traverses daunting legal, regulatory, and scientific territory. But no matter. This is the age of Instant Punditry and Opinions 'R Us, where reductive blurbs are served up-to-the-minute and declarations of bewilderment are embarrassingly out of fashion.

So color me quaint. When it comes to making sense of this deal's fundamental premises, I just don't get it. Do you?

According to negotiators, tobacco companies have agreed to pay $368.5 billion over the next 25 years to compensate states for the costs of treating smoking-related illness. Annual installments will start at $10 billion and rise to $15 billion. It's simple, say the attorneys general in 40 states, including ours, who sued for compensation. "We didn't buy the cigarettes, we didn't smoke the cigarettes, and we didn't assume the risk of smoking. Why should we get stuck with the bill?" snorted one state attorney from Florida.

This indignant lawyer and his colleagues argue that since the tobacco industry deceived consumers about the risks of smoking, it was "unjustly enriched" and therefore owes innocent state governments who had "no choice" but to pay for public health costs incurred by smokers. Similarly, Washington state Attorney General Christine Gregoire declared in her lawsuit last year that cigarette makers had lied about their products' deadly effects - and therefore owed the state more than $1 billion it was "forced" to pay through the Medicaid program to treat smoking-related illnesses between 1980 and 1993.

Huh?

If cigarette manufacturers are guilty of deceptive advertising, by all means prosecute on those grounds. But let's not cloud the air. The industry didn't force state governments to pay the smoking-related medical bills of Medicaid recipients - or any other Medicaid bills for that matter. Medicaid is a voluntary state-federal program for splitting the costs of medical care for low-income people. If participating states have a problem with offering unrestricted government benefits to recipients who voluntarily engage in risky, costly behavior, that's a political beef to take up with Congress - not the tobacco industry.

Another irksome detail ignored by rave reviewers of the deal: Tobacco consumers don't cost state treasuries money. Smokers usually die years earlier than nonsmokers. That means states avoid paying for nursing homes and non-smoking-related illnesses, which smokers would have suffered in later years had they not gotten themselves hooked on cancer sticks. When you consider that Washington smokers pay an excise tax of 81.5 cents per pack - the second-highest in the nation - it's puzzling to suggest that they are a net burden on anyone except themselves. In fact, Harvard economist Kip Viscusi has shown that in all states, smokers pay their own way.

When I asked Gregoire about these pesky economic realities a week before the settlement was announced, she rolled her eyes and called it "industry propaganda." Other negotiators balk at such morbid accounting of smokers' costs and benefits to society. But hey, who started counting in the first place?

This troubling rationale for recovering Medicaid costs will almost certainly lead to equally absurd and expensive applications: Obesity-related illnesses cost Medicaid programs billions annually, so why shouldn't McDonald's and other purveyors of fatty foods pony up? And if violent movies cause people to behave violently, as liberal and conservative cultural critics argue, then shouldn't states be reimbursed by horror-flick producers for Medicaid expenses associated with copycat crimes?

Preposterous, you say? Show me someone who pooh-poohs this slippery litigious slope, and I'll show you five eager lawyers ready to slide down it tomorrow.

Even more alarming, and confusing, is the leap from allowing states to recoup health costs for which they have no rightful claim to allowing those same states to dictate nationwide regulations and restrictions over which they have no rightful jurisdiction. Gregoire touts landmark settlement provisions - all in the name of protecting children, of course - that will outlaw cartoon advertising, cigarette product placement in movies and television, all name-brand corporate sponsorship of sporting events, and all tobacco use in public places, workplaces and fast-food restaurants.

But under what official authority is Gregoire acting when she seeks to ban, through a settlement agreement, activities that are neither unconstitutional nor under any threat of legislative action in the state of Washington?

The answers are as elusive as skeptics willing to ask the questions. So far, the only clear and concerted challenge to the settlement has come from disgruntled public-health groups and Big Nanny lawmakers who gave it a tentative two thumbs down because its provisions "don't go far enough."

It doesn't take a legal eagle to see the totalitarian underpinnings of this settlement. If the government can regulate risky behavior and free speech under the bogus guise of avoiding future outlays for public health insurance, there is no end to the controls it may impose. Yet supporters insist blindly that the deal is an "astonishing" and "historic" triumph.

For whom, I wonder still, and for what?

Michelle Malkin's column appears Tuesday on editorial pages of The Times. Her e-mail address is: malkin1@ix.netcom.com.

Copyright (c) 1997 Seattle Times Company, All Rights Reserved.

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