Smoke in Their Eyes: Lessons in Movement Leadership from the Tobacco Wars

13. Betrayed?

94 13 Betrayed? Matt left Chicago that Wednesday night, April 9, 1997, to make his expected appearance at the Center for Tobacco-Free Kids’ first annual Youth Advocate of the Year gala, and to play an active role in the next day’s series of national events skewering the tobacco companies—the Center-sponsored “Kick Butts Day.” The negotiations were still secret, and Matt told the other negotiators that his absence from these signature events would raise eyebrows—and suspicion: “I said to them, if I don’t show up for these two things, somebody’s going to ask awkward questions.” The negotiating sessions were scheduled to resume the next week, back across the river from Washington, in Arlington. Then came the leak. On April 16, two and a half weeks after the secret talks had begun, Alix Freedman and Suein Hwang of the Wall Street Journal had the story, and, with one critical exception, it was accurate: The nation’s two largest cigarette makers are in secret talks with tobacco plaintiffs about a sweeping settlement that would cover virtually all the industry’s liability for smoking, in return for strict advertising curbs and an enormous payment that could total $300 billion over the next 25 years. While both companies have voiced interest in a possible settlement before, they are now for the first time negotiating the details of some longunthinkable concessions, including accepting regulation by the Food and Drug Administration, banning cigarette billboards and ceasing to use pictures of people—such as the Marlboro Man—in ads. In return, the cigarette makers are seeking shelter from the mounting threat of liability lawsuits, through a novel mechanism that would require an act of Congress. The plan under discussion would set up a regime somewhat akin to workers compensation whereby smokers could seek payments from a big industry fund, but generally would be forbidden to sue the cigarette companies. The Settlement 95 After cataloguing the cast of participants, they characterized Matt’s role: “Another influential figure at the table is Matthew Myers, a lawyer for the Coalition for Tobacco-Free Kids and long-time crusader against cigarettes, who could help deliver the valuable support of public health groups.” But the authors were dead wrong in suggesting that Matt and his negotiating colleagues were prepared to give up FDA authority to regulate nicotine, an inaccuracy that would predictably startle and enrage most tobacco control leaders—and raise grave doubts about Matt’s role at the table. “The industry appears to be gaining a crucial concession on its most controversial ingredient: nicotine. Although nicotine is widely believed to be the addictive component in cigarettes, the current proposal would leave nicotine outside the FDA’s purview. The industry has been alarmed that the FDA might try to force it to lower nicotine levels.” Who leaked the story? Certainly not anyone supportive of the negotiations . Knowing fingers pointed to Minnesota attorney general Hubert Humphrey III, who had a strong case under Minnesota law, a responsive judge, and able and aggressive attorneys. Humphrey had every incentive to try to win his case in a dramatic trial on the eve of the Minnesota primary elections for governor, in which he was a strong, but strongly challenged, candidate. Humphrey and his legal team, led by Minnesota trial lawyer Mike Cerisi, had been angered to learn—only the previous week—of the negotiations. They were deeply ambivalent about participating, and later they would choose to resist fiercely both the process and the settlement agreement itself. “Bullshit!” exclaimed Cerisi to the charge that the Humphrey camp had leaked the story. Later, David Kessler’s confidant and counselor, Jeff Nesbit, implied to me with a lifted eyebrow and a shrug that it was he who had leaked the story. But the Journal story contained details of the negotiations that Nesbit did not know at the time. So Humphrey and Cerisi may have been unfairly blamed—or there may have been more than one leak. In any event, the leak cleaved a division between Humphrey and the negotiators that would widen and deepen as the settlement unfolded. Matt was awakened by a 3:00 A.M. Good Morning America phone call the morning the Wall Street Journal article appeared, asking him to comment on the Journal story and to appear on the next morning’s show: 96 Smoke in Their Eyes I knew instantly this was a complete disaster. I...