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ATTEMPTS TO LINK TOBACCO litigation with federal product liability reform legislation strike us as nothing more than a smokescreen put up by reform opponents.
A case in point was the appearance by Iowa Attorney General Thomas Miller before the House Judiciary Committee a few days ago.
Mr. Miller, who represents one of the states that currently is suing the tobacco industry for reimbursement of Medicaid costs stemming from tobacco-related illnesses, called for a specific carve-out for tobacco in any product liability legislation that might be considered so that suits against the industry could continue.
Ironically, product liability per se is not at the heart of the suits that the attorneys general are pursuing.
Instead, they focus on a variety of other issues, such as the allegation that tobacco manufacturers conspired to withhold information about the effects of nicotine and that they targeted advertising to children.
Nonetheless, after detailing his other problems with product liability reform, the Iowa attorney general testified that "this is not the time for Congress to come running to the rescue of the tobacco industry."
But we're hard-pressed to see how S. 5, the federal product liability reform bill introduced in the Senate earlier this session, can be seen as any rescue plan for the tobacco industry. S. 5, now called the Product Liability Reform Act of 1997, is identical to the measure passed by Congress last year but ultimately vetoed by President Clinton.
One major reason that the Product Liability Reform Act appears to have little, if any, bearing on the tobacco suits is that even if it were to be passed today, it would not be retroactive. Some of the suits were filed long before the current version of the bill was even drafted.
And contrary to Mr. Miller's assertion that tobacco somehow would be protected by the 15-year statute of repose contained in S. 5 for capital goods such as industrial machinery, tobacco would enjoy no such immunity. Tobacco is not a workplace good.
In fact, tobacco isn't mentioned anywhere in the bill, and that's all to the good. Calls for creating some sort of carve-out for tobacco-or any other unpopular substance or product-within a uniform product liability code is an invitation to chaos.
There could be one law for most products, a different set of laws for products exempted from the federal statute and inevitably some gray areas that could be endlessly litigated over as parties disagree which code applies.
That sort of confusion should be avoided at all costs. Lawmakers have to see through the smokescreen that ties tobacco and reform together and determine the fate of product liability reform upon its own merits.
We firmly believe that if they do so, a uniform federal product liability code will indeed become the law of the land.