Suing the Tobacco and Lead Pigment Industries: Government Litigation as Public Health Prescription

2. Product-Caused Diseases Confront the Law of the Iron Horse

ous to treat smokers as “social pariahs” and “second class citizens” who “already sit in the back of the plane and the bus.”75 Philip Morris proffered a “Smoker’s Bill of Rights” that included the “inalienable” rights “to choose to smoke,” “to accommodation in public places,” and “to freedom from unnecessary government intrusion.”76 Unlike lead paint, the sale and distribution of cigarettes, at least to adults, has remained legal and essentially unregulated—although the government has restricted promotion of the product. According to the Centers for Disease Control and Prevention, in 2005, 20.9 percent of all American adults were smokers,77 slightly less than half the percentage at the time of the release of the 1964 surgeon general’s report. Perhaps more troubling, in 2003, 21.9 percent of high school students smoked.78 Childhood Lead Poisoning It has been known for thousands of years that exposure to lead, in suf‹ciently high concentrations, results in harmful health consequences. Hippocrates, in 370 BCE, diagnosed colic in a miner as resulting from lead.79 In the eighteenth century, Bernadino Ramazzini, an Italian physiThe Morning after the Consumer Century 25 Per capita cigarette consumption Male lung cancer death rate Female lung cancer death rate Age-Adjusted Lung Cancer Death Rates Per capita cigarette consumption Male lung cancer death rate Female lung cancer death rate Per Capita Cigarette Consumption Fig. 1. Twentieth-century cigarette consumption and lung cancer death rates. (Data from American Cancer Society, “Tobacco Use in the U.S., 1900–2004,” Cancer Statistics 2008, PowerPoint no. 396, slide 27, http://www.cancer.org/downloads/STT/ Cancer_Statistics_2008.ppt. Copyright 2008 American Cancer Society, Inc. Reprinted with permission from www.cancer.org. All rights reserved.) cian and professor, observed similar symptoms among those who used lead to glaze pottery. By the late eighteenth and the nineteenth century, colic attributed to lead poisoning was noted among those who consumed ciders or wines that had been stored in lead containers. In the modern era, as previously noted, exposure to lead occurs largely through three distinct pathways: occupational exposure, atmospheric exposure resulting from breathing air contaminated by automobiles using gasoline containing tetraethyl lead, and exposure to lead paint.80 Most early reports of the harmful effects of lead exposure focused on occupational poisoning, that is, exposure to very high doses of lead on an ongoing basis resulting in severe and acute lead poisoning of adult workers. The “pure” white lead that early twentieth-century painters and consumers preferred was made by corroding heavy ingots of metallic lead with acid, resulting in a crusting of white lead.81 Similarly, foundries producing lead type, so critical to the printing process before the computer age, resulted in rooms “always ‹lled with a ‹ne lead dust.”82 The constant breathing of dust from paint plants and type plants sometimes resulted in acute lead poisoning— colic, gastrointestinal problems, and often death. Painters, particularly those working in interiors or other con‹ned spaces, experienced problems similar to those of factory workers. In October 1924, several Standard Oil laboratory employees who were working with tetraethyl lead became severely paranoid, hallucinated, convulsed, and screamed as a result of lead exposure.83 Five workers died, and another thirty-‹ve suffered severe neurological problems. However, within a few decades, industrial lead poisoning was to become a prominently featured success story of the emerging ‹eld of occupational health.84 While lead poisoning among adults has become largely a thing of the past, children suffer a variety of harmful effects at much lower levels of exposure than do adults. Pathways to lead exposure that pose little or no risk for adults are extremely dangerous to children. Though children were occasionally poisoned as a result of helping their parents paint or working in factories with heavy concentrations of lead, the two most signi‹cant sources of lead exposure for children during the twentieth century were lead compounds in the air, resulting from the use of “leaded” gasoline, and lead paint on the walls of homes and schools. For much of the twentieth century, children breathed air containing lead particles resulting from automobile exhaust of cars using tetraethyl lead (TEL) in amounts suf‹ciently great to cause neurological damage to children (but not to adults).85 As previously described, the regulatory process worked, albeit belatedly, and TEL was removed from gasoline; this 26 suing the tobacco and lead pigment industries action resulted in almost immediate...