Another Whiff of Trouble for Big Tobacco

If this keeps up, we may just start pitying the tobacco companies. In the latest indication of just how far the political and legal climates have swung against Big Tobacco in recent years, the New York Senate voted Monday to require all cigarettes sold in the state to feature self-extinguishing paper. Ostensibly, the regulation is a way to reduce fires (cigarettes are responsible for roughly one in four fire-related deaths in the U.S.), but the bigger story here is that it's become popular for politicians to make it more expensive and complicated to produce, market and sell cigarettes. That's particularly true in New York, where the measure follows revelations last year that a group of high-ranking state politicians and officials had been wined and dined lavishly by the tobacco lobby. Philip Morris's top Albany lobbyist has since been barred from working in New York State, and some officials have been fined for receiving improper favors. In the wake of the scandal, the New York legislature in February approved the highest per-pack cigarette tax in the country. And now this.

Self-extinguishing cigarettes are not a new idea. Philip Morris developed the technology in the 1980s, but has only recently decided to begin test-marketing it on some of its less popular brands. Tobacco firms have resisted using the safer cigarettes because they believe they annoy smokers — who have to relight their butts if they take too much time between drags — and cost more to produce. The anti-tobacco lobby, of course, is cheering the news and predicting that it could open the industry to another spate of lawsuits. But, says TIME legal analyst Alain Sanders, while the measure could help show that tobacco firms have held out on making cigarettes safer to a certain extent, plaintiffs would have "a serious uphill battle" in proving tobacco companies culpable of deaths caused by untended cigarettes.

"Certainly the anti-tobacco forces will utilize this information to make the case for damages because they are so antagonistic toward Big Tobacco," says Sanders. "But to make that case, you would have to prove that cigarettes are defective. Many products are dangerous without being defective. The same arguments made about the fire hazard of cigarettes could be made about candles, but we don't hear that very often." Still, it's a sure bet that when, as expected, New York governor George Pataki signs off on the measure, other states will soon follow. Nobody, except for a few politicians in a few tobacco-growing states, wants to look soft on cigarette makers these days.